UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 

Faculty  library 


REPORTS  OF  CASES 


HOARD   AUTJ   DETERMINED   IN   THK 


SUPREME    COURT 


OF  THX 


STATE    OF   NEW   YORK. 


MARCUS   T.  HUN, 


VOLUME   XV, 
1876. 


.  BANKS    &    COMPANY, 
ALBANY,  N.  Y. 
1906 


Entered  according  to  act  of  Congress,  in  the  year  one  thousand  eight  hundred 

and  seventy-six, 

BY  BANKS  &  BKOTHBRS, 

in  the  office  of  the  Librarian  of  Congress,  at  Washington. 


OP 


THE  Q-EFERAL  TERMS  OF  THE  SUPREME  COURT. 


First  Department.  Second  Department. 

HON.  NOAH  DAVIS,  P.  J.  HON.  JOSEPH  F.  BARNARD,  P.  J. 

"     JOHN  R.  BRADY,  "     JASPER  W.  GILBERT, 

"     CHARLES  DANIELS.  "     JACKSON  0.  DYKMAN. 

Third  Department.  Fourth  Department 

HON.  WM.  L.  LEARNED,  P.  J.  HON.  JOSEPH  MULLIN,  P.  J. 

"     AUGUSTUS  BOCKES,  "     E.  DARWIN  SMITH, 

"    DOUGLASS  BOARDMAN.  "     JOHN  L.  TALCOTT. 


of  the 


First  Judicial  District. 

JOHN  B.  BEADY,      GEOEGE  0.  BAEEETT, 
IOAH  DAVIS,  OHAELE8  DONOHUE, 

ABEAHAM  E.  LAWEENCE, 

Second  Judicial  District. 


Fifth  Judicial  District. 

MILTON  H.  MEEWIN,    JOSEPH  MULLIH 
GEOEGE  A.  HAEDIN,       JAMES  NOXON, 

Sixth  Judicial  District. 


OALVIN  E.  PEATT,      JASPEE  W.  GILBEET,  WM.  MUEEAY,  Jr.,    DAVID  L.  FOLLETT, 
JOSEPH  F.  B  AENAED,  JAOX80N  0.  DYKMAN.    EANSOM  BALOOM,  DOU&LASS  BOAEDMAN 


Third  Judicial  District. 


Seventh  Judicial  District. 


OHA8.  E.  INQALL8.  WM.  L.  LEAENED,     JAMES  0.  SMITH,    GEO.  W.  EAWSON, 

rHEODOEIOE.WE8TBEOOK,A.MELVINOSBOEN.  OHA8.  0.  DWIGHT,  DAVID  EUMSET. 

Fourth  Judicial  District.  Eighth  Judicial  District. 

AUGUSTUS  BOOKE8,  *  AMAZIAH  B.  JAMES,     GEOEGE  BAEKEE,     CHARLES  DANIELS, 
JOSEPH  POTTEE,        JDDSON  8.  LANDON.     JOHN  L.  TALCOTT,     ALBERT  HAIGHT. 

*  Resigned. 


CA  USES  in  which  ike  decisions  contained  in  tfiese  Reports  hav* 
teen  pawed  upon  by  the  Court  of  Appeals. 

HON.  TOL.         FA«». 

AcxmcAn  t.  GORTON  .............................................  5         301 

Ri^tntd,  and  judgment  ordered  for  plaintiff  and  for  a  specific  performance 
of  the  contract:  September  2tf,  1876. 

AXNOT.  EXECUTRIX,  o.  ERIK  R.  Co  .................................  5         606 

Affirmed:  November  21,  1876. 

BAKKRC.  ARNOT  ......  ........................................  3         683 

Affirmed  :  December  12,  1876. 

BAKER  AND  OTHERS  t>.  LEVER  .....................................  S         114 

Affirmed  :  November  14,  1876. 

BAIJ.ET  t>.  BERGEN  ............................................  9         520 

Affirmed:  November  28,  1876. 

BARTEAU  t.  PHOINIX  MUT.  LIFE  INS.  Co  ..........................  1          480 

Affirmed  :  November  28,  1876. 

BARTEAU  0.  PH<ENIX  MUT.  LIFE  INS.  Co  ...........................  1         480 

Motion  for  reargument  denied,  with  $10  cost*:  December  19,  1876. 

BATUB  «.  SOUDDER  ...............................................    6        800 

Affirmed  :  November  28,  1876. 

BoBDENt.  SOUTH  SIDE  R  R  Co.  OP  L.  1  ..........................  5         184 

Affirmed  :  October  6,  1876. 

BYRNES  v.  CITT  OF  COHUES  .......................................  5         608 

Affirmed  :  November  14,  1876. 

CENTRAL  Orrr  SAVINGS  INSTITUTION  v.  WALKER  ...................  5          84 

Motion  for  reargument  denied,  with  $10  costs  :  November  28,  1876. 

COLEGROVE  V.  TALLMAN  ..........................................  5  108 

Order  affirmed,  and  judgment  absolute  for  defendant  on  stipulation,  with 

costs  :  October  3,  1876. 

COLTOHRFOX  ..................................................      6  49 

Affirmed  :  November  28,  1876. 

COOK*.  ALLEN  ...................................................  5         501 

Affirmed  :  September  19,  1876. 

OOOK  «.  WAKDEH,  ETC.  ,  ST.  PAUL'S  CHUBCH,  HAVAKA,  .............  0         898 

Affirmed:  November  14,  1876. 


COWDIN  v.  TEALE.  ....................  ' 

Motion  granted,  with  $10  costs  :  September  19,  1878. 


Hmr,  TOI.     PAML 

CRANE  v.  TUBNBB 7         357 

Affirmed  :  December  5, 1876. 

CCMMLNS  «.  AGRICULTURAL  INK.  Co 5         554 

Reversed,  new  trial  ordered  :  November  14,  1876. 

DANNAT  v.  MAYOR. 6  88 

Affirmed:  September  19,  1876. 

DAT  v.  MAYOR 6          98 

Reversed,  new  trial  ordered :  September  19, 1876. 

DITCHETT  v.  SPUYTEN  DUYVIL  AND  PORT  MORRIS  R.  R.  Co 5         165 

Reversed,  and  new  trial  ordered  :  December  5,  1876. 

EDINGTON  v.  MUT.  L.  INS.  Co.  OF  N.  Y 5  1 

Reversed,  and  new  trial  ordered  :  November  14, 1876. 

ESTES  v.  WOULD  MUT.  LIFE  INS.  Co 6         849 

Ifotwn  granted  on  payment  of  full  costs  of  appeal,  as  if  appeal  had  been 
argued,  and  ten  dollars  cost  of  motion  and  the  plaintiff  stipulating  that 
defendant  may  read  evidence  from  printed  case,  subject  to  all  legal  objec- 
tions and  exceptions  :  December  19,  1876. 

FISHER  v.  BANTA 4  85 

Affirmed:  September  19,  1876. 

FISKE  v.  MAYOR,  ETC.  (see  3  Hun,  648) 6  W 

Reversed,  and  new  trial  ordered  :  October  3, 1876. 

FLYNN  v.  EQUITABLE  LIFE  ASSURANCE  SOCIETY 7         887 

Reversed,  and  new  trial  ordered :  December  19, 1876. 

FOWLER  v.  N.  Y.  GOLD  Ex.  BANK 6         186 

Reversed,  and  new  trial  ordered  :  October  6,  1876. 

QINNA  v.  SECOND  AVENUE  R.  R.  Co 8         494 

Affirmed  :  November  28, 1876. 

GODFREY  v.  MOSER 8         218 

Motion  for  reargument  denied,  without  costs  :  September  19,  1876. 

GUARDIAN  MUT.  LIFE  INS.  Co.  ».  KASHOW 8         618 

Order  of  General  Term  reversed,  and  judgment  on  report  of  referee 
affirmed,  with  costs:  September  19,  1876. 

BOURLEY  v.  CAMPBELL 6         918 

Remittitur  to  be  corrected,  by  making  the.  judgment  without  costs  to  either 
party  as  against  the  other :  September  26, 1876. 

H  A  UCK  v.  CBAIGHEAD 8        38? 

Order  ^f  General  Term  granting  new  trial  reversed,  and  judgment  qf  Cir- 
cuit affirmed :  December  5, 1876. 


HUH,  VOL.        FA81 

Kirt.N.Y  Airo  HARLBM  R  R  Oo <*  24 

Affirmed:  November  14, 1876. 

KTLBC.KTLE. 8         *W 

jjtmirf  <u  to  cfciMr,  and  reverted  as  to  claim  of  executor*,  and  proceed- 
ings remitted  for  rehearing  on  latter  claim  by  surrogate,  ante  to  abide 
hisonltr:  December  5,  1876. 

ln>DKLL  9.  PATOH 7         195 

Appeal  dismissed:  November  28,  1876. 

UAHBR  t.  HJBEHNIA  INS.  Co.  OF  OHIO 6         862 

Affirmed :  November  14,  1876. 

MV&&H  c.  DODOB 4  26 

Reversed,  neio  trial  granted :  September  19,  1876. 

MATTER  OF  DHANPYILLE  CEMETERY  ASSOCIATION 5         482 

Order  of  General  Term  reversed  and  application  denied:  September  19, 1876. 

MATTER  OF  GARDNER 6          67 

Order  affirmed:  December  19,  1876. 

MATTER  OF  PKCONET 5         434 

Order  affirmed :  December  5,  1876. 

MATTER  OF  PROSPECT  PARK  AND  CONST  ISLAND  R.    R.    Co.    TO 

ACQUIRE  TITLE  TO  LANDS  IN  KlNQS  Co.   OF    WM.    MOYNAHAN  AND 

OTHERS 8  30 

Orders  affirmed,  with  costs  of  one  appeal  only:  November  21,  1876. 

MILLER  t.  BARBER 4         802 

Affirmed :  September  19,  1876. 

MURDOCH  e.  WARD g  9 

Judgment  reversed  and  judgment  ordered  declaring  the  child  of  0.  F.  Ward 

entitled  to  the  fund  in  controoersy  to  the  exclusion  of  the  widow,  costs  of 

all  parties  to  be  paid  out  of  tftefund :  November  28,  1876. 

NICHOLS  t>.  N.  Y.  C.  AND  H.  R,  R,  R  Co.  4         827 

Motion  to  dismiss  appeal  granted  on  payment  of  costs  of  appeal,  and  $10 
costs  of  motion  :   October  6,  1876. 

PKOFLB  EX  REL.  DBKAREST  v.  FAIRCHTLD g         334 

Order  affirmed :  November  21,  1876. 

PEOPLE  EX  REL.  GALLATIN  NATIONAL  BANK  v.  COMMISSIONERS  OF 
TAXES,  ETC 8  636 

Affirmed:  December  19,  1876. 

PEOPLE  EX  REL.  MILLER  ».  BOARD  OF  POLICE  COMMISSIONERS.  ...  6         229 
Order  of  Supreme  Court  and  of  board  of  police  commimoners  rewned, 
and  proceedings  remitted  for  rehearing  by  the  board:  December  5,  1876. 


Vll 

HUN,  VOL.         FA6S. 

PEOPLE  EX  REL.  VAN  TASSEL  v.  SUPERVISORS  OF  COLUMBIA  COUNTY,  8         375 
Order  of  General  Term  reversed,  and  order  of  Special  Term  affirmed : 
November  21,  1876. 

PHILLIPS??.   WHEELER 3         603 

Order  affirmed  :  O  -itober  3, 1876. 

PHCENDC  WAREHOUSING  Co.  v.  BADGER 6 

Affirmed  :  November  14,  1876. 

ftEAD  o.  DECKER 5 

Affirmed :  November  14,  1876. 

ROBINSON  v.  BRISBANE 7 

Appeal  dismissed  on  opinion  of  court  below  :  December  13,  1876. 

ROEBLING  v.  DUNCAN 8 

Order  affirmed :  November  28,  1876. 


«.  PHCENIX  MUT.  LIFE  INS.  Co  ............................  8 

Reversed  without  costs,  the  cause  being  removed  to  the  Circuit  Court  qf  the 
United  States,  and  the  court  below  having  no  jurisdiction  :  December  19, 

1876. 

SISTERS  OF  CHARITY  OF  ST.  VINCENT  DE  PAUL  ®.  KELLY  .........  7         290 

Judgment  reversed  and  decree  of  s  arrogate  affirmed:  Decembers,  1876. 

SLOMAN  v.  GT.  WESTERN  R.  R.  Co  ......  .  .....................  6         648 

Order  of  General  Term  reversed,  and  judgment  on  verdict  affirmed; 

November  14,  1876. 

SPINNEK  v.  N.  Y.  C.  AND  H.  R.  R.  R.  Co.  (see  2  Hun,  431)  ........  6         600 

Affirmed  :  October  6,  1876. 

ONION  DIME  SAVINGS  INST.  v.  BISPHAM  .............  .  .............  .  8         310 

Order  affirmed  :  October  3,  1876. 

WAIT  v.  RAY  .....  .........................................  .....  5         649 

Affirmed:  September  19,  1876. 
WALLACE  t>.  MAYOR  .................................  .  .....  ......  8 

Affirmed:  September  19,  1876. 

WATKHJS  v.  WILCOX  ..............................................  4 

Affirmed:  September  19,  1876. 

WHEELER  t>.  SCHOFIELD  ......................  ...............  ,  ...6 

Appeal  dismissed  :  November  14,  1876. 


WHITMORE  v.  MAYOR  ..........  .     ............  .'.... 

Affirmed  :  September  19,  1876 

WHITNEY  t>.  TOWNSEND 

Appeal  dismissed:  September  19,  1875. 


Tiii 

HUH,  TOL. 
Wotox  «.  Rurnux 7          15 

Affirmed:  November  21, 1878. 

Wcxwru  •.  BAAB 6         285 

Affirmed:  Octobers,  1876. 

Youxc,  ADKH.,  •.  HILL 6        613 

Ordfr  •/  General  Term  reverted,  and  that  of  Special  Term  affirmed  : 
Number  14, 1876. 

N.  Y.  0.  AND  H.  R  R  R.  Co 7         551 

Affirmed:  December  5, 1876. 


A   TABLE 


NAMES  OF  THE  CASES  REPORTED 


IN  THIS  VOLUME. 


Aldrich,  Stewart  v. 
Aliger  v.  Keeler  . 
Andrews  v.  Betts 
Drew  v. 


—  v.  Monilaws 


PAGE. 

241 

125 

322 

23 

65 


Ansonia  Brass  and  Copper  Co. 

v.  Babbitt  .  .  .157 
Armstrong  v.  Fargo  .  .175 
Arrowsmith  v.  Arrowsmith  .  606 
Auer,  Mackey  v.  .  .180 

B. 

Babbitt,  Ansonia  Brass  and 

Copper  Co.  v.  .  .  .157 
Bacon,  Tooley  v.  .  .176 

Bancker  v.  Mayor  .  .  409 
Barry  v.  Brune  .  .  .395 
Bast  able  v.  City  of  Syracuse  587 
Beach,  Pres.  Society  of  Knox- 

boro  v.  .  .  .  .  644 
Beecher,  Moulton  v.  .  .  100 
Belden,  Plummer  v.  .  .  455 
Benedict,  Lange  v.  .  .  362 
Bertholf  v.  O'Reilly  .  .16 
Betts,  Andrews  v.  .  .  822 
Black  well,  Hasten  v.  .  .313 
Blakeslee,  Hnbbell  v.  .  .  603 
HUN— VOL.  VTIL  ii 


Bordeaux  v.  Erie  Railway  Co.  579 
Bowery    National    Bank    v. 

Mayor  ....  224 
Boyle  v.  City  of  Brooklyn  .  32 
Boynton,  McParlin  v.  . 
Bradley  v.  McLaughlin 
Brady,  Matter  of 
Brooks  v.  Hathaway 
Brown  v.  Conger 
Brown  v.  Nicholson 
Brown  v.  People 
Brune,  Barry  v.  . 
Burrows  v.  Whitaker  . 


449 
545 
437 
290 
625 
464 
562 
395 
260 


c. 


Callaghan,  Dusenbury  v.  .  541 
Calvo  v.  Davies  .  .  .  222 
Cantrell,  McVey  v.  .  .  522 
Campbell  v.  Smith  .  .  6 
Carley,  Hill  v.  .  636 

Casbacker,  Stephens  v.  .116 

Chenango  Bridge  Co.  v.  Paige  292 
City  of  Brooklyn,  Boyle  v.  .  32 

Guest  v.  .  97 

People  ex 

rel.  Ackerly  v.  .  .  5<J 

City  of  Brooklyn,  Saw-mill 

Co.  v.  .     37 


TABLE  OF  CASES  REPORTED. 


I'itv  of  Syracuse,  Bastable  v.  587 
Collier,  Skidmore  v.  .  .60 
Collins,  Rugen  v.  .  .  384 
Commissioners  of  Taxes,  Peo- 
ple v.  .  .  .  .  536 
iiistock  v.  Drohan  .  .  873 
Conger,  Brown  v.  •  .  625 
O>imer,  People  v.  .  .  588 
Corn  well  v.  Deck  .  .122 
Coaghlin  v.  N.  Y.  C.  and  H. 

R  R.  R.  Co.  .  .  .  136 
Covert  v.  Hughes  .  .  805 
Craig  v.  Sw  inert  on  .  .144 
Craighead,  Hauck  v.  .  .  237 
Grouse  v.  Paddock  .  .  630 
Culver  v.  Village  of  Fort 

Edward  .  .  .  .  340 
Culver,  McDonnell  v.  .  .155 

D. 

D.  and  H.  Canal  Co.,  Flem- 
ing v.  .  .  .  .  358 
Dakin,  Mechanics  and  Trad- 
ers' Bank  v.  .  43 1 
Davies,  Calvo  v.  .  .  .  222 
Deck,  Corn  well  v.  .  .122 
Decker  v.  Gay  lord  .  .110 
Devereux,  Village  of  Deposit  v.  317 
Devlin  v.  Shannon  .  .531 
Dixon,  People  ex  rel.  R.,  W. 

and  O.  R.  R.  Co.  v.  .  .178 
Dolan  v.  Mayor  .  .  .  440 
Douglass  v.  Reilly  .  .  85 
Drake,  Young  v.  .  .61 

Drew  v.  Andrews  .  .  23 
-  v.  Mayor  .  .  .  443 
Drohan,  Comstock  v.  .  .873 
Duncan,  Roebling  v.  .  .  502 
Dunphy  v.  Mayor  .  .  479 
Dusenbury  v.  Callaghan  .  541 
Dusenbeny,  Phillips  v.  .  848 

E. 

Earle,  Taylor  v.  .         .         .       1 
Elkus,  Von  Hein  v.       .         .516 


El  well  v.  Skiddy.  .  .  78 
Ely,  Span  v.  255 

Empire  B.  and  M.  L.  ASBO.  v. 

Stevens  ....  515 
Erie  Railway  Co.,  Bordeaux  v.  578 

McCaig  v.   .   599 

Everett  v.  Lockwood    .          .   356 

F. 

Fagan,  Howe  Machine  Co.  v.  174 
Fairchild,  People  ex  rel.  De- 

marest  v.  .  334 

Fargo,  Armstrong  v.  .  .175 
Fellows  v.  Mayor  .  .  484 
First  Baptist  Church  of  Rome, 

Norcott  v.  .  .  .639 
Fleming  v.  D.  and  H.  Canal 

Co.  ....  358 

Foster  v.  Hawley  ,  .  .68 
Fowler,  People  v.  .  .  233 
Franklin  v.  Schermerhorn  .  112 
Frost  v.  Yonkers  Savings 

Bank  26 


a. 

Gainey,  People  v. 
Gale  v.  Mayor 
Gallagher  v.  Vought 
Gaylord,  Decker  v. 


60 
370 

87 
110 


Gifford,  Town  of  Chautauqua 
v.    .          .         .         .          .   152 

Gilbert,  Herrman  v.      .          .   253 
Ginna  v.  Second  Avenue  R. 

R.  Co 494 

Grey  v.  Voorhis  .         .         .612 
Guest  v.  City  of  Brooklyn    .     97 


H. 

Haley  v.  Wheeler 
Hampton,  Inslee  v. 
Hanmer,  Pope  v. 
Hathaway,  Brooks  v. 
Hauck  v.  Craighead 
Hawley,  Foster  v. 


569 
230 
265 
29C 
237 
68 


TABLE  OF  CASES  REPORTED. 


Hazard   v.   N.   Y.   and   Erie 

Bank  .  .  .  .613 
Helmer  v.  St.  John  .  .166 
Herrman  v.  Gilber;  .  .  253 
Hicks  v.  Marshall  .  .327 
Hill  v.  Carley  .  .  .636 
--  Lattimer  v.  .  .171 

-  v.  Newichawanick  Co.  .  459 
--  v.  Syracuse,  B.  and  N. 

Y.  R.  R.  Co.     .  .    293 

Hinman  v.  People  .  .  647 
Holt,  McKinney  v.  .  .  336 
Hook  v.  Pratt  .  .  .102 
Horton,  People  ex  rel.  Stan- 

ton  v  .....  357 
Hotchkiss  v.  Platt  .  .  46 
Howe  Machine  Co.  v.  Fagan  174 
Howell  v.  Van  Sicklen  .  524 

Hubbard  v.  O'Brien  .  .  244 
Hubbell  v.  Blakeslee  .  .  603 
Huot,  Simon  v.  .  .  .  378 
Hughes,  Covert  v.  .  .  305 

I. 

Inslee  v.  Hampton         .         .   230 

J. 

James,  Ward  v.  .  .  .  526 
Johnson,  Mabie  v.  .  .  309 

K. 

Keeler,  Aliger  v.  .  .    125 

Kent  v.  Reynolds  .  .  559 

King,  Stan  ton  v.  '  .  .       4 

Kingsley,  People  v.  .  .  233 

Knickerbocker  Life  Ins.  Co. 

v.  Nelson           .  .  .21 

Knntz  v.  Licht     .  .  .14 


Lake  Shore  and  M.  S.  R.  R. 

Co.,  Onthank  v.  .  .131 
Lange  v.  Benedict  .  .  862 
Lattimer  v.  Hill  .  .117 


Law,  Ruhe  v. 
Lawrence,  Wilson  v. 
Le  Clare  v.  Stewart 
Licht,  Kuutz  v.    . 
Lillis  v.  O'Conner 


FA0B. 

.  251 
.  593 

.  127 
.  14 
.  28C 

Lockwood,  Everett  v.  .  .  356 
Long  Island  City  v.  Long 

Island  U.  R.  Co.        .          .     58 
Long  Island  R.  R.  Co.,  Long 

Island  City  v.   .         .          .58 
Loomis  v.  Mo  wry  .          .   311 

M. 

Mabie  v.  Johnson  .  .  309 
Mackey  v.  Auer  .  .  .180 
Mackie,  Norton  v.  .  .  520 
Marckwald  v.  Oceanic  Steam 

Nav.  Co.  .      •    .         .  547 

Manley,  Thayer  v.  .  .  550 
Marshall,  Hicks  v.  ..  .327 
Masten  v.  Blackwell  .  .313 
Matter  of  Brady  .  .437 

Moore  .          .  513 

N.  Y.  Catholic  Pro- 
tectory    .          .          .          .91 
Matter  of  N.   Y.  Prot.  Epis. 

Pub.  School      .      "•'.•"      .457 
Matter  of  Prospect  Park  and 

C.  I.  R.  R.  Co.  .          .     3C 

Matter    of    Rhinebeck     and 

Conn.  R.  R.  Co.         .          .     34 
Matter  of  Woven  Tape  Skirt 

Co.  ....  508 

Mayor,  Bancker  v.         .          .   409 

Bowery  Nat.  Bank  v.  229 

Drew  v.  .          .          .   443 

Dolan  v.  .          .   440 

Dunphy  v.        .         .   479 

Fellows  v.         .          .   484 

Gale  v.     .          .          .   370 

N.  Y.  Balance  Dock 

Co.  v.       .  I  *''.         .          .   247 

Mayor,  Peters  v.  .  .  405 
Peyser  v.  .  .413 


Ill 


TABLE  OF  CASES  REPORTED. 


MM 

Mayor,  Sheridan  v.  .  .42 
Max  on  v.  Reed  .  ,  .618 
McCaig  v.  Erie  Railway  Co.  599 
McClure,  Moore  v.  .  .557 
McDonnell  v.  Culver  .  .  155 
McKinney  v.  Holt  .  .  336 
McLaughlin,  Bradley  v.  .  545 
McParlin  v.  Boynton  .  .  449 
MoVey  y.  Cantrell  .  .  522 
Mead  v.  Stratton  .  .148 

Walsh  v.    .         ,         .  387 

Mechanics  and  Traders'  Bank 

v.  Dakin  .         .         .431 

Merchants'  Bank  v.  Union  R. 

R.  and  Trans.  Co.  .  .  249 
Merritt  v.  Village  of  Port- 
cheater  .  .  .  .40 
Messenger,  Record  v.  .  .  283 
Millington,  Waggoner  v.  .  142 
Minar,  Palmer  v.  .  .  342 
Mitchell,  Nash  v.  .  .471 
Monilaws,  Andrews  v.  .  .  65 
Moore,  Matter  of  .  .513 
Moore  v.  McClure  .  .  557 
Moore,  Tisdale  v.  .  .19 
Mott  v.  Mott  .  .  .474 
Monlton  v.  Beecher  .  .  100 
Mo  wry,  Loomis  v.  .  .311 
Munro  v.  Whitman  .  .  553 
Mnrdock  v.  Ward  .  .  9 
Murray,  People  ex  reL  Bab- 
cock  v 577 

Myer  v.  People    .         .         .538 

N. 

Nast  v.  Mitchell  .  .  .471 
Nelson,  Knickerbocker  Life 

Ins.  Co.  v.  .  .  .21 
Newichawanick  Co.,  Hill  v.  459 
Nicholson,  Brown  v.  .  .  464 
Norcott  v.  First  Bap.  Church 

of  Rome  .  .  .  539 

Norton  T.  Mackie  .  520 


N.  Y.  Balance  Dock   Co.  v. 

Mayor  ....  247 
N.  Y.  Catholic  Protectory, 

Matter  of  .  .  .91 
N.  Y.  Cotton  Exchange,  Peo- 
ple ex  rel.  Elliott  v.  .  216 
N.  Y.  and  Canada  R.  R.  Co., 

Town  of  Essex  v.  .  .861 
N.  Y.  C.  and  H.  R.  R>  R.  Co., 

Coughlin  v.  .  .  .136 
N.  Y.  C.  and  H.  R.  R.  R.  Co., 

Peck  v.  .  .  .  .  286 
N.  Y.  and  Erie  Bank,  Hazard 

v 613 

N.  Y.  Prot.  Epis.  Public 

School,  Matter  of      .         .  457 

O. 

O'Brien,  Hubbard  v.     .  .  244 

O'Conner,  Lillis  v.         .  .   280 

O'Reilly,  Bartholf  v.     .  .16 

Oceanic     Steam     Nav.  Co., 

Marckwald  v.   .          .  .547 

Onthank  v.  Lake  Shore  and 

M.  S.  R.  R.  Co.  ,   131 


P. 

Paddock,  Crouse  v. 
Paige,  Chenango  Bridge 

v.    . 

Palmer  v.  Minar  . 
Pardee  v.  Wood  . 
Parmelee  v.  People 
Peabody,  Williams  v.    . 
Peck  v.  N.  Y.  C.  and  H. 

R.  R.  Co. 
People,  Brown  v. 

v.  Conner 

—  v.  Fowler 

v.  Gainey          . 

Hinman  v.         . 

v.  Kingsley 

Myer  v.  . 

Parmelee  v. 


Co. 


R. 


630 

292 
342 
584 
623 
271 

236 
562 
533 
233 
60 
647 
233 
528 
623 


TABLE  OF  CASES  REPORTED. 


xm 


577 


334 


VAOB. 

People,  Pickett  v.         .          .       3 

Sauserv.  .          .302 

People  ex  rel.  Ackerly  v.  City 

of  Brooklyn     .          .         .56 
People  ex  rel.  Babcock  v.  Mur- 
ray .          .         » 
People   ex   rel.   Demarest   v. 

Fairchild 
People  ex  rel.  Elliot  v.  N.  Y. 

Cotton  Exchange  .  .216 
People  ex  rel.  Gallatin  Nat. 

Bank  v.  Commrs.  of  Taxes  536 
People  ex  rel.  R.,  W.  and  O. 

R.  R.  Co.  v.  Dixon  .  .178 
People  ex  rel.  Shaw  v.  Scott  566 
People  ex  rel.  Stanton  v.  Hor- 

ton  ....   357 

People  ex  rel.  Van  Tassel  v. 

Supervisors  .  .  .275 
Peters  v.  Mayor  .  .  405 

Peyser  v.  Mayor 
Phillips  v.  Dusenbury 
Phoenix  Mutual  Life  Ins.  Co., 

Shaft  v 

Pickett  v.  People 
Platt,  Hotchkiss  v. 
Plummer  v.  Belden 
Pratt,  Hook  v.     . 
Prentice  v.  Whitney     . 
Pres.    Soc.    of    Knoxboro   v. 

Beach  ...  .• 

Prospect  Park  and  C.  L  R. 

R.  Co.,  Matter  of  .30 

Pope  v.  Hanmer  .          .265 

Post  v.  Weil 
Powell,  Rollwagen  v.    . 

Q. 

Quain  v.  Russell  .         .319 

B. 

Record  v.  Messenger  .  .  283 
Reed,  Maxon  v.  .  .  .  618 
Reilly,  Douglass  v.  .85 


413 

348 

632 

83 

46 

455 

102 

300 

644 


418 
210 


PA«B. 

Reynolds,  Kent  v.      ••'.•'•  .559 

Reynolds,  Smith  v.        .  128 

Rhinebeck   and  Conn.  R.  R. 

Co.,  Matter  of  .     3* 

Roebling  v.  Duncan      .  .   502 

Rollwagen  v.  Powell    .  210 

Ross  v.  Wood    -",         .  .185 

Rugen  v.  Colling            .  .   384 

Ruhe  v.  Law        .          .  .   251 

Russell,  Quain  v.           .  .319 

S. 

Sauser  v.  People  .          .   302 

Saw-mill  Co.  v.  City  of  Brook- 
lyn ....     37 
Schermerhorn,  Franklin  v.      .   112 
Scott,  People  ex  rel.  Shaw  v.  566 
Second    Avenue   R.    R.    Co., 

Ginna  v.  ...   494 

Shaft   v.    Pho3nix   Mut.  Life 

Ins.  Co.  ....  632 
Shannon,  Devlin  v.  .  .631 
Shelbourne,  Todd  v.  .  .510 
Sheridan  v.  Mayor  .  .  424 
Sherman  v.  Town  of  Ham- 
burg 

Simmonds,  Wills  v. 
Simon  v.  Huot 
Skiddy,  Elwell  v. 
Skidmore  v.  Collier       . 
Smith,  Campbell  v. 

v.  Reynolds        . 


Span  v.  Ely 
Spelman  v.  Terry 
Stanton  v.  King  . 
Stephens  v.  Casbacker. 

Empire  B.  and  M. 


L.  Asso.  v. 
Stewart  v.  Aldrich 

Le  Clare  v. 

St.  John,  Helmer  v. 
Stratton,  Mead  v. 
Supervisors,    People    ex  rel. 

Van  Tassel  v.  . 


643 
189 
378 
73 
50 

6 

128 
255 
205 

4 
116 

515 
241 
127 
166 
148 

275 


XIV 


TABLE  OF  CASES  REPORTED. 


•Mfc 

SwituTton,  Craig  T.      .         .144 
Syracuse,  B.  and  N.  Y.  R,  R. 
Co.,  HU1  v.       .         .         .296 

T. 

Taylor  v.  Earle  1 

Terry,  Spelraan  v.  .  .  205 
Thayer  v.  Manley  .  .  550 
Tisdale  v.  Moore  .  .19 
Todd  v.  Shelboarne  .  .510 
Tooley  v.  Bacon  .  .176 

Town  of  Chautauqua  v.  Gif- 

ford  .  .  .152 

Town  of  Essex  v.  N.  T.  and 

Canada  R.  R.  Co.  .  .361 
Town  of  Hamburg,  Sherman 

v 643 

Turner,  Vrooman  v.  .78 

TJ. 

Union  R.  R.  and  Trans.  Co., 
Merchants*  Bank  v.   .         .249 

V. 

Van  Order  v.  Van  Order  .  315 
Van  Sicklen,  Howell  v.  .  524 
Village  of  Deposit  v.  Dev- 

ereux       .         .         .         .317 
Village  of  Fort  Edward,  Cul- 
ver v 340 

Village  of   Seneca    Falls  v. 
Zalinski   .  .571 


Village  of  Portchester,  Mer- 
rill v 40 

Von  Hein  v.  Elkus        .  .  516 

Vorhis,  Grey  v.    .         .  .612 

Vought,  Gallagher  v.    .  .87 

Vrooman  v.  Turner       .  .     78 

W. 

Waggoner  v.  Millington  .  142 
Walsh  v.  Mead  .  .  .387 
Ward  v.  James  .  .  .  526 
Ward,  Hurdock  v.  .  .9 
Weil,  Post  v.  .  .  .418 
Wkeeler,  Haley  v.  .  .569 
Whitaker,  Burrows  v.  .  260 
Whitman,  Munro  v.  .  .  553 
Whitney,  Prentice  v.  .  .  800 
Williams  v.  Peabody  .  .271 
Wills  v.  Simmonds  .  .189 
Wilson  v.  Lawrence  .  593 
Wood,  Pardee  v.  .  .584 
Ross  v.  .185 


Woven  Tape  Skirt  Co.,  Mat- 
ter of       .  .  508 


Yonkers  Savings  Bank,  Frost 
v.    .          .         .         .         .26 

Young  v.  Drake  .         .         .61 

Z. 

Zalinski,  Village  of    Seneca 
Falls  v.    .  .  671 


TABLE  OF  CASES  CITED. 


I  Disapproved.                               t  Distinguished. 

Followed. 

A. 

s 

PAOB, 

Adams  v.  Curtis     . 

.    4  Lans.  165     . 

.  316 

Akerly  v.  Vilas                   .            . 

.    24  Wis.  165    . 

.436 

Alexander  v.  Parsons 

.    2  Lacs.  333,  357 

.  228 

Allaire  v.  Hartshouse 

.     1  Zab.  665,  673 

.  512 

Allen  v.  Brown       .            ,            . 

.     5  Lans.  514     . 

.     48 

/M    "\X7-mSrt  mn 

.     12  Pick.  302    . 

.  250 

c/»     W  lltit-lIllS                          •                     • 

Andrews  v.  Durant            . 

.     11  N.  Y.  35     . 

.  245 

Angel  v.  Coon 

.     38  N.  Y.  378  . 

.  402 

Archer  v.  Hubbell 

.     4  Wend.  514  . 

.  173 

Ayers  ®.  Western  R.  R.  Co. 

.     49  N.  Y.  660 

.  524 

Atlantic  Dock  Co.  v.  Mayor 

.     53  N.  Y.  64    . 

544 

Austin  v.  Monro                   .            . 

.     47  N.  Y.  360  . 

5 

Ayrault  v.  Pacific  Bank 

.    47  N.  Y.  570   . 

.       894,  427 

B. 

B.  and  A.  B  R.  Co  «.  Sbanly 

107  Mass.  568 

.  258 

Bs'.iicr  B   Harder 

.     6  N.  Y.  S.  C.  (T. 

&C.)440       307 

»»    Pone 

<  5  N.  Y.  8.  C.  (T. 

&C.)102    .     17 
113,  320 

A.              T>SVnn 

.     2  Hun,  556      . 

.  821 

.     2  Denio,  136    . 

;             .  239 

Baldwin  v.  City  of  Buffalo 

.     35  N.  Y.  375  . 

.  357 

1ft   A  HI*    QP»Q 

AQ 

Ballina.  Dillaye     .            .  •          4 

1O  ivUU.    O')O       • 

.     37  N.  Y.  35     . 

.                 .      09 

.     82 

Bank  of  Chemung  v.  City  of  Elmira 

.     53  N.  Y.  53     . 

.  •  95 

Bank  of  the  Commonwealth  v.  Mayor 

43  N.  Y.  184  . 

.      416,  417 

Bank  of  Utica  v.  Finch 

.     3  Barb.  Ch.  293 

.  606 

Bank  of  Rochester  v.  Jones 

4  N.  Y.  497    . 

.  250 

Barker  v.  Woods     . 

.     1  Sandf.  Ch.  129 

.  467 

Barlow  v.  Pease 

.     5  Hun,  564     . 

.  285 

Barnes  v.  Underwood 

.     47  N.  Y.  351  . 

470,  471,  610 

Barney  t>.  Burstenbinder    . 

.     64  Barb.  212  . 

.  258 

B    TTHth 

n    TTT_       J      tZKK. 

OQO 

Barry  v.  Equitable  Ins.  Co. 

.       O   W  CD.Q.  000     . 

.     59  N.  Y.  587  . 

.                  .    doa 

.  400 

Barton  v.  Beer 

.     35  Barb.  78     . 

.  478 

.     37  Barb.  293  . 

.  592 

Bascomb  ®.  B.  and  S.  L.  R  R  Co. 

.     27  Barb.  221  . 

.  229 

Basset  ».  U.  8 

.     9  Wall.  38       . 

.  866 

Baxter  ».  Portsmouth 

.     5  B.  &  C.  170  . 

.  331 

ZT1 


TABLE  OF  CASES  CITED. 


Bayley  «.  M.  S.  and  L.  R  R  Oo. 

Beach  r.  Beach      . 

r.  Endrees 

Bealse.  See 
Beddoe  e.  Wadsworth 
Behreo  r.  McKenzle 
Bell  t.  Town  of  Ksopus      . 
Bellows  v.  Sackett 
Belmout  Bank  c.  Hoge 
Bolton  r.  Baxter     .  • 

Benedict  r.  Johnson 
Bennett  t.  Judson  . 
Beuton  t.  Martin     . 
Bent  t.  Armstrong 
Billington  t>.  Wagoner 
Bingham  v.  Weiderwax      , 
Bissell  c.  X.  Y.  C.  R  R  Co. 
Blake  e.  Douglass 
Blatchley  v.  Moser 
Bleakley  0.  White 
Blydenburgh  v.  Cotheal 
Bogart  v.  Steamboat  John  Jay 
Booth  t.  Powers 
Boston  v.  Worthington 
Bostwick  v.  B.  and  O.  R  R  Co.    . 
Bowen  v.  Bowen 
Boyd  &  Suydam  v.  Hitchcock 
Bradley  v.  Fisher 
t  Brandon  ».  People 
Brass  «.  Worth 
Brewer  «.  Salisbury 
Brewster  n.  Silence 

v.  City  of  Syracuse 

Bridgeport  Fire  Ins.  Co.  9.  Wilson 
Bridger  e.  Pierson 
Brookman  n.  Hamill 
Brown  e.  Comstock 

e.  Joddrell  . 

«.  Puntz      .  .  . 

9.  Smith      . 

9.  Tapscott 

Bruce  t>.  Wright     . 

Buel  t>.  N.  Y.  Cent  R  &  . 
Burckle «.  Eckart  .  . 

Burhans  v .  Tibbits 
Burr  v.  Beers 
Burwell  v.  Knight 


Qunpltoll  <?.  Consalos 
—      ••  •  9.  Hoopet 


PAOB. 

<  L.  R  7  C.  P.  415;  4  Eng.  Rep. 

•  \  (Moak's  notes)  384  .  288 

.  2  Hill.  260   .     .  .316 

.  51  Barb.  570      .  .  561 

.  10  Penn.  St.  5«     .  .  332 

.  21  Wend.  120  .     .  543 

.  23 Iowa, 343  .  .  33U 

.  49  Barb.  506  .  644 

.  15  Barb.  96  .     .  .  391 

.  85  N.  Y.  65  .     .  .  310 

.  58  N.  Y.  411 ;  54  id.  245   482,  434 

.  2  Lans.  94   ..  .  172 

.  21  N.  Y.  238  .     .  407 

.  52  N.  Y.  570  .     .  172 

.  8  Watts  &  Ser.  40   .  591 

.  33  N.  Y.  31  .     .  .  2S8 

.  1  Comst.  509  .     .  .  C43 

.  23  N.  Y.  61  .     .  .  477 

.  27  Ind.  416   .     .  .  849 

.  15  Wend.  218      .  .  87 

.  4  Paige,  654  .     .  .544 

.  1  Duer,  197  .     .  .  543 

.  17  How.  (U.  8.)  899  .  .  325 

.  56  N.  Y.  22       .  .  551 

.  10  Gray,  496  .     .  .  576 

.  45  N.  Y.  712  .     .  .  298 

.  2  Bradf.  336  ..  89 

.  20  Johns.  76  .     .  .586 

.  13  Wall.  335  .     .  .366 

.  42  N.  Y.  265  .     .  .  564 

.  40  Barb.  648,  654  .  254 

.  9  Barb.  512   .     .  .  246 

.  4Seld.  207   .     .  Ill 

.  19  N.  Y.  116  .     .  .90 

.  84  N.  Y.  275  .     .  .  876 

.  45  N. Y.  604  .     .  .423 

.  43  K  Y.  557  .     .  .  326 

.  10  Barb.  67  .     .  .139 

.  1  Mor.  &  M.  105  .  831 

.  11  N.  Y.  Leg.  Ob.  24  .  .  243 

.  24  Barb.  419  .     .  .  234 

.  6  M.  &  W.  119     .  .  199 

.  5  N.  Y.  S.  C.  81    .  173 

.  21  N.  Y.  314  .     .  .  894 

.  1  Denio,  337  ;  3  Comst.  132  .  555 

.  7  How.  75        .  .  282 

.  24  N.  Y.  178  .  81,  118,  223,  374 

.  51  Barb.  267  .  .  402 


0. 


25  N.  Y.  618  . 

3  Sm.  &  G.  158 


40£ 
339 


TABLE  OF  CASES  CITED. 


xvu 


Canjolle  0.  Feme 
Cad  well  t.  Hicks 

Carmach  v.  Commr.  .  . 

•  Carman  v.  Plass  . 

Carpenter  v.  Beare  .  . 

Case  "o.  Abeel          .  .  . 

Casey  t>.  Brush       .  .  . 

Cassin «.  Delany  .        >&• .,  • 

Cayuga  Co.  Nat.  Bank  v.  Daniels 
Cent.  Nat.  Bank  of  N.  Y.  v.  Arthur 
Cesar  v.  Karats      .... 
Chamberlain  v.  Dempsey    . 
Chambersburg  Savings  Bank  «.  McLellan 
Channon  v.  Lusk    . 
Chapin  v.  Fellowes  ,, 

Chapman  v.  City  of  Brooklyn 

v.  Hatt 

Chase  ».  N.  Y.  Cent.  R.  R.  Co.      . 

Cheang-Kee  v.  U.  S.        ,   «-.  . 

Chenango  Bridge  Co.  v.  Lewis 

C.  Q.  and  B.  R.  R.  Co  v.  Park      . 

Christophers.  Austin 

Chubbuck  v.  Vernam 

Church  v.  Brown 

City  of  Brooklyn  v.  Brooklyn  City  R  R.  Co. 

City  of  Chicago  v.  Robbins 

City  Savings  Bank  v.  Bidwell 

Clancy  v.  Byrne 

Clark  v.  Carrington 

«.  Eighth  Ave.  R.  R  Co     . 

Clayton  v.  Wardell    . 
Clemence  «.  Auburn 

Coffin  v.  N.  Y.  Cent.  R.  R.  Co.      . 

Cole  «.  Hughes       .... 

Collamer  «.  Foster 

Collins  v.  N.  Y.  C.  and  H.  R.  R.  R  Co. 

V.  Sinclair  .  .  . 

Com.  Bank  of  Kentucky  v.  Varnum 
Com.    Bank    of    Rochester    «.    City    of 

Rochester 
Commonwealth  v.  Griffin  . 

v.  Moore  . 

Conderman  v.  Hicks  .  . 

Conbocton  Stone  Co  ».  B.,  N.  Y.  and  Erie 

R.  R.  Co. 

Connolly  v .  Poillon 
Conrad  v.  Trustees  of  Ithaca 
Corn  Ex.  Ins.  Co.  v.  Babcock 
Corning  v.  Gould    .... 
Cosgrove  ».  Ogden 
Cotton  v.  Cotton  w 

Htm—  VOL.  Vm.        iii 


MML 

23  N.  Y.  106  .  .     71 

87  Barb.  458    .  .  .512 

5  Binney,  184 .  .  378 

23  N.  Y.  286  .  .  Ill 

4  Hun,  509      .  .  .  389 

1  Paige,  398    .  .  .54 
SCaines,  293  .  .  198 
38  N.  Y.  178  .  289 
47  N.  Y.  631  .  .250 

2  Sweeney,  194  .  .456 
60  N.  Y.  229  .  .  258 
22  How.  356    .  .  45 
76Penn.  203  .  .  123 
2  Lans.  211     .  .  825 
36  Conn. 132  .  .  399 
40  N.  Y.  372  .  .  417 
11  Wend.  41  .  632 
26  N.  Y.  523  .  581 
8  Wall.  321      .  .  .  866 
63  Barb.  Ill    .  .  .  294 
18  HI.  460       .  .  581 
11  N.  Y.  216  .  339 
42  N.  Y.  432  .  412 
21  N.  Y.  815,  830  .  423 
47  N.  Y.  481  .  .  576 
2  Black  (U.  S.)  418      .  575 
29  Barb.  325    .  .  .454 
56  N.  Y.  120  .  .  891 
7  Cranch,  308  876 
36  N.  Y.  135    .  .  498 
4  N.  Y.  230     .  .  .    71 

4  Hun,  386      .  .  .  693 
(  64    Barb.   379 ;    affirmed,   56 

1      N.  Y.  632  .  .  .  299 
54  N.  Y.  444  .                   157,  243 

26  Vermont,  757  .    '        .  199 

5  Hun,  504      .  .  .600 
51  m.  328        .  .  .49 

6  Lans.  97  98 


43  Barb.  488  . 

21  Pick.  525  . 

6  Mete.  243  . 

3  Lans.  108  . 

52  Barb.  390  . 


415 

805 
.  805 
.  84« 

.  891 


41  Barb.  366;  41  N.  Y.  619  n    257 
16  N.  Y.  158  .  .  .     89 

42  N.  Y.  613  .  .  .68 
16  Wend.  531              .            .  477 
49  N.  Y.  255,  257        .            .  287 
42  Beavan,  67             .  .470 


1VU1 


TABLE  OF  CASES  CITED. 


Coulter  0.  Am.  M.  U.  Bxp.  Go.     . 

Cox0.  Hickman     . 

CraigD.  Parkta        . 

Crary  0.  Goodman  . 

Crist  0.  Armour      .... 

Crocker  r.  New  London  and  P.  B,  R.  Oo. 

Crofoot  9.  Bennett  . 

Crooke  0.  Andrews 

Cross  0.  O'Donnell 

Cunningham  0.  Cunningham         . 

Curtis  0.  Brooks     ...» 

Currier  0.  Webster 


D. 


Daniel  0.  Metropolitan  R  R.  Oo, 
Dane  0.  Lady  Kirkwall     . 
Darlington  0.  The  Mayor  . 
Davis  0.  Pattison    .  . 

0.  The  Seneca 

Day  0.  Pool 
Dean  0.  Borchsenius 
Decker  0.  Matthews 
De  Mott  0.  McMullen 
Dewey  v.  Osborn    . 
Dexter  0.  Bevine    . 
Dobson  0.  Pearce  .  . 

Dolan  0.  Mayor      .  . 

Doolittle  0.  Tice     . 
Douglass  0.  Hoag   . 

0.  White 

Bounce  0.  Dow       .  . 

Downing  n.  Marshall 
Draper  v.  Henningsen 
Dubois  0.  Miller     . 
Duffy  0.  McManus  . 

Dumpor's  Case       .  . 

Duncan  0.  Bellini  . 
Dung  0  Parker 
Dnnlap  0.  Hawkins 
Durbrow  0.  McDonala 
Dutton  0.  Willner  . 
Dickinson  0.  City  of  Worcester 
•  Dinehart  0.  Wells    . 
Dygert  0.  Remerschneider 


5  Lans.  67 
SHofL.  Cases,  813 
40  N.  Y.  181  . 
22  N.  Y.  170,  175 
84  Barb.  378-887 
24  Conn.  249  . 

2  N.  Y.  258     . 
40  N.  Y.  547    . 

44  N.  Y.  661    . 

3  Dow.  P.  C.  481 
87  Barb.  476    . 

45  N.  H.  233    . 


L.  R.  8  C.  P.  223  . 

8  C.  &  P.  679  .  . 
81  N.  Y.  186  .        '    . 

24  N.  Y.  824   .  . 

18  Am.  Jur.  486  . 

52  N.  Y.  416    .  . 

30  Wis.  236     .  . 

12  N.  Y.  313  .  . 
8  Abb.  Pr.  (N.  8.)  335 

4  Cow.  329      .  . 
42  Barb.  573    .  . 

2  Kern.  165      .  . 

6  Hun,  506      .  . 
41  Barb.  182    .  . 
1  Johns.  283    .  •. 
8  Barb.  Ch.  624  . 
57  N.  Y.  16     .  . 
37  N.  Y.  380   .  . 

1  Bosw.  614     .  . 

5  Hun,  332      .  . 

3  E.  D.  Smith,  658      . 

(  1  Smith  Leading  Cases 
(     Am.  ed.),  128 

60  N.  Y.  151   .  . 

52  N.  Y.  496  .  . 

2  N.Y.  8.  C.  (T.  &  C.)  292, 
5  Bosw  131 

62  N.  Y.  312  .  . 

7  Allen,  22      .  . 
2  Barb.  432      .  . 
82  N.  Y.  629   . 


487 


(6th 


270 
802 
584 
264 

33 
246 

71 
628 
199 


331 
98 
78 
824 
452 
99 
551 
307 
570 
264 
187 
492 
269 
232 
58ft 
452 
52« 
456 
321 
613 

423 


.  627 
299  548 
.  638 
.399 
.591 
.281 
.  627 


Eadie  0.  Slimmon 
Elliot  0.  Ince 
Elliott  0.  Pell 
Elmendorf  0.  Mayor 


E. 


26  N.  Y.  9      .            .  .400 

7  DeG.  M.  &  G.  476  .  831 

1  Paige,  263,  268  .405 

25  Wend.  693  IT 


TABLE  OF  CASES  CITED. 


xix 


Elwood  v.  West.  Un.  TeL  Co. 

Embree  v.  Hanna 

Emery  v.  Pease  .  . 

Enright  v.  People    .        ••'/*"         • 

Evans  v.  Harris       .        /  V"v        * 

Everitt  v.  Everitt  .  . 

Ex  parte  Aiscough.  .  . 

Bellett 

Lange       . 

Lange       .  . 

Langdale  .  .  . 

Sibbald     . 

F. 

Fearn  v.  Bowers  (cited  in  Lickbarrow  v. 

Mason)     . 

Ferrier  v.  Wyse      .... 
Ferrin  ».  Myrick     .... 
Field  v.  N.  Y.  Cent.  R.  R.  Co 
First  Nat  Bank  of  Gin.  v.  Kelly  . 
Fish  v.  Dodge 

Flagg  v.  City  of  Worcester 
Fleetwood  v.  Mayor  .  . 

Flower  v.  Lance  .  .  . 

Fobes  v.  Shallock    . 
Forbes  v.  Appleton 
Foot  v.  Bronson      .  .  . 

Fowler  v.  Seaman   . 
Freathy  v.  Freathy 
Frecking  v.  Holland  .  . 

Frisbie  «.  Larned    .... 

Frost  v.  Knight      .... 
Furman  v.  Coe 


G. 


Gage  0.  Brewster    . 
Gale  v.  Clark 

Gardner  v.  Keteltas 

1>.  Ogden  . 

Garighe  0.  Losche  . 
Garnsey  v.  Rogers  . 
Gaskin  v.  Meek 
Gennond  v.  Jones  . 
Getty  v.  Binsse 
Gillespie  v.  Torrence 
Goodrich  v.  Thompson 
Gosling  is.  Higgins 
Gould  v.  Gould 
v.  Moring    . 


45  N.  Y.  549  . 

428 

,    5  Johns.  101  .            .            . 

382 

20  N.  Y.  62     . 

184 

21  How.  383  .            .            , 

304 

19  Barb.  416  . 

263 

29  N.  Y.  39,  75 

467 

2  P.  Wms.  591 

214 

7  Cox,  297      . 

214 

18  Wall.  163  . 

364 

,     18  Wall.  191,  195 

367 

18  Vesey,  301 

555 

12  Peters,  492 

436 

j.  1  Sin.  L.  C.  (7th  Am.ed.)  1162 

250 

3  Bland.  Ch.  (Maryland)  51 

351 

41  N.  Y.  315  . 

5 

32  N.  Y.  350  . 

600 

57  N.  Y.  34    . 

250 

4Denio,  311  . 

391 

13  Gray,  601  . 

590 

2  Sandf.  475  . 

415 

59  N.  Y.  603  . 

416 

22  Barb.  570  . 

325 

5  Cush.  117     . 

415 

4  Lans.  47 

591 

40  N.  Y.  592  . 

157 

42  Barb.  641    . 

317 

53  N.  Y.  422    . 

473 

21  Wend.  450              .            . 

586 

j  L.  R.   5  Exch.    322  ;  L.  R.  7 

j     Exch.  Ill     . 

204 

1  Caines'  Cases  in  Error,  96   . 

123 

81  N.  Y.  218  . 

377 

(  N.  Y.  Weekly  Dig.  vol.  1,  No. 

1     10,  p.  207     . 

439 

8  Hill,  330      . 

339 

22  N.  Y.  327  . 

208 

6  Abb.  284,  re. 

456 

47  N.  Y.  233  .            .           8, 

223 

42  N.  Y.  186  . 

491 

2  Hill,  569      . 

568 

49  N.  Y.  385  . 

169 

25  N.  Y.  810   . 

233 

44  N.  Y.  324  . 

299 

1  Camp.  451    . 

77 

29  How.  441  . 

317 

28  Barb.  444   . 

111 

XI 


TABLE  OF  CASES  CITED. 


Graham  «.  Pinckney 

Grant  *.  Morse       • 

—  c.  Poilloa     .  • 

Green  t>.  The  Mayor 

Greene  «.  The  Mayor         . 

«.  Herder    .  • 

Greenvault  «.  Davis 

Grimes  t.  Hillenbrand 

Griswold  t.  Miller  . 

G ui  1  ford  r.  Supervisors  of  Chenango 

H. 

•  Haas  t>.  O'Brien      . 

Hall  ».  City  of  Buffalo 

«.  Wilson 

Hallas  v.  BeU 
Halsey  t>.  Carter     . 
Ham  «.  Jez 
Hammett  n.  Linneman 
Hanlon  t>.  Supervisors 
Hanse  t>.  Cowing    . 
Hathaway  t>.  Town  of  Homer 
ilarger  c.  Wilson    . 
Harnan  v.  Brotherson 
Harris  v.  Jex 

v.  People     . 

c.  Youman  .  .  . 

Hart  v.  Deamer      .         .  • 

Hartleys.  Harrison  . 

Hartness  t>.  Thompson 

Haskins  v.  The  People 

Hatfleld  t.  Sneden  . 

Hayes  v.  Phelan 

Hepburn  v.  School  Directors  of  Carlisle 

Hewlett  e.  Brown  . 

Hier  v.  Staples 

Higgins  v.  Watervliet  T.  and  R  R  Co. 

Hill «.  Northrup    . 

Billiard  v.  Goold    . 

Hinsdell  v.  Weed    . 

Hoagland  v.  Miller. 

Hochster  v.  De  La  Tour     . 

Holman  v.  Hobson  . 

Holmes  v.  Remsen 

Hopkins  v.  Lee       .  .  . 

«.  McLaren 

Houser  t.  The  People        .  . 

Hovey  t>.  Rubber  Tip  Co.  . 
Howard  r.  Norton 


PAttK 

7  Robt.  147     .            .  .  84tf 

22  N.  Y.  828  .            .  .  412 

20  How.  (U.  S.)  168     .  .  324 

2  Hilt.  208, 209           .  51C 
60  N.  Y.  808  .  .  459 
7  Robt.  455;  80  How.  210  .  456 
4  Hill,  648                   .  .543 
11  8.  C.  N.  Y.  854     .  .  847 
15  Barb.  523     .            .  .829 

3  Kern.  143  99 


(  Court  of   Appeals,  not  yet 

•  I     published.  .  .  .519 

.     IKeyes,  193  .  .  .  247 

.  16  Barb.  548,  549  .  511 

53  Barb.  247  .  268 

.  IDuer,  667     .  .  .232 

.  66  Barb.  282    .  .  .     20 

.  48  N.  Y.  406  .  .     33 

.  57  Barb.  383  .    98 

.     2  Lans.  288     .  ,  .391 

.  5  Lans.  267;  54  N.Y.  655    153,  154 

.     63  Barb.  237   .  .  .  512 

.     1  Denio,  537    .  .  .  366 

.  55  N.  Y.  421   .  .  .  295 

.     59  N.  Y.  599   .  .  .  492 

.     1  Hoff.  Ch.  178  .  351 

.  6  Wend.  497   .  .  329 

.  24  K  Y.  170  .  .  .  118 

.  5  Johns.  160  .  .854 

.     16  N.  Y.  344  .  .  804 

.  54  N.  Y.  285,  287  .       470,  610 

.  4  Hun,  733;  5  id.  335  ./      320,  321 

.  23  Wall.  480   .  .  .  539 

.     7  Abb.  74;  1  Bosw.  655  .  456 

.     51  N.  Y.  136  .  .  .68 

.  46  N.  Y.  23     .  .  287 

4  N.  Y.  S.  C.  (T.  &  C.)  120    .  847 
.    34  N.  H.  230  .  .  .  580 

5  Denio,  172  .  .  75,    78 
.     16  Abb.  Pr.  103  .  .  629 
.     2  Ellia  &  B.  678  .  .  202 
.     8  Humph.  127  .  .  512 
.     20  Johns.  229  .  .  382 
.    6  Wheat.  113  .  438 
.    4  Cow.  667,  679  .  .  881 
.    46  Barb.  33  .  .304 

( 12  Abb.  (N.  S.)  860;  50  N.  Y. 

•|     835  .            .  .  .48 

,    65  Barb.  167    .  .586 


TABLE  OF  CASES  CITED. 


liowell  v.  Christy   . 

«.  Mills       .  . 

Rowland  «.  Greenway 

v.  Woodruff 

Hoyt  v.  Adee 

v.  Bounett 

Hubbard  <o.  Chapin 

».  National,  etc.   . 

Huber  v.  People      .          .,  , 
f  Hudson  City  Savings  Institute 
f  Hudson  R.  K.  R.  Co.  v.  Cutwater 

Hull  v.  Blake 

Hurd  t>.  Curtis 


Ingalls  v.  Lord 
Ingersoll «.  Hall 
limes  v.  Purcell 
Irvin  v.  Fowler 
«.  "Wood 


Jackson  v.  Brookins 

».  Dunsbaugh 

v.  Osborn  . 

v.  Woodruft 

Jacobs  t>.  Hell 

James  v.  James 

Jefltersonville  R  R.  Co.  «.  Rogers 

Jenkins  v.  Waldron 

Jones  v.  Grant 

e.  Hibbert     . 

t>.  Percival 

Johnson  v.  Kelly    . 

9.  Zink 

Juliand  v.  Rathbone 
Justice  v.  Lang 


I. 


J. 


SLans.  242     ,  . 

63  N.  T.  322  .  . 
22  How.  (U.  S.)  491    . 

60  N.  Y.  73     .  . 

8  Laus.  173     .  . 
58  Barb.  529;  50  N.  Y.  538 

2  Allen,  328     .  . 
11  How.  Pr.  149  . 
49  N.  Y.  132   .  . 
5  Hun,  612      .  . 

3  Sandf.  689    .  . 
13  Mass.  153   .  . 
19  Pick.  459    . 


1  Cow.  240      .  . 
80  Barb.  392    .            . 

2  N.  Y.  8.  C.  (T.  &  C.)  541 
5  Robt.  482     .  . 

4  Robt.  138 


264 

353 

77 
548 
329 
302 
512 
236 
490 
96 
36 
381 
243 


551 
543 

528 
391 
391 


5  Hun,  530   .  .  129, 321 

1  Johns.  Cases,  92  .  .423 

2  Wend.  555  .  .  .  564 

1  Cow.  286   .  .  .  270 

2  Leigh  (m.  p.),  393  .  .  376 

4  Paige,  115  .  .  .  352 
38  Ind.  116;  10  Am.  Rep.  103  .  581 
11  Johns.  114  .  .  366 
10  Paige,  348  .  .405 
2  Starkie,  304  .  .  512 

5  Pick.  485   .  .  .  134 
9  N.  Y.  S.  C.  (2  Hun)  189  184 
52  Barb.  396  .  .  374 
89  N.  Y.  369  .  .  .  518 
52  N.  Y.  323  .  .  432,  434 


Kavanagh  v.  City  of  Brooklyn 
Kay  «.  Whittaker    . 
Keegan  v.  Western  R  R  Co. 
Kellogg  v.  Richards  . 

Kel'jey  v.  Clay 
King  v.  Brooklyn     . 

v.  Home 

Kirby  v.  Boylston  . 

Kitchen  v.  Place 

K  nickerl>acker  0.  De  Freest 

«.  Seymour 

Konitzky  v.  Meyer  . 
Kortrigut  v.  Cady    . 


38  Barb.  234  . 
44  N.  Y.  565,  576 
8  N.  Y.  175 
14  Wend.  116 
4  Bibb,  441  . 
42  Barb.  627  . 
Cowper,  683  . 
14  Gray,  249  . 
41  Barb.  465  . 
2  Paige,  304  . 
46  Barb.  198  . 
49  N.  Y.  571,  576 
21  N.  Y.  343  . 


.  590 

.  404 

.  257 

.  586 

325 

.  40 

.  805 

.  390 

.  144 

850,  354 

.  470 

.  876 

28,  296 


Xlll 


TABLE  OF  CASES  CITED. 


Lapatoy  *>.  Griereon  » 
Lawrence  0.  Barker  . 
f  Lawrence  ».  Fox     .           . 
».  For     . 

0.  French 

Lassence  0.  Tierney 

Lamb  r.  Grover 

Lancaster  Co.  Nat  Bank  «.  Moore 

L.-mdon  0.  Mayor     . 

Landt  0.  Hilts         . 

Lane  0.  Gould 

Leather  0.  Poultney 

Leavenworth  0.  Brockway 

Lee  v.  Village  of  Sandy  Hill 

Leigh  0.  Paterson 

Leitch  t>.  Wella 

Leland  0.  Tousey     . 

Lemon  v.  Phoenix  Life  Ins.  Co.     . 

Leonard  0.  Stover  . 

Lignot  0.  Redding  .  .  . 

Li  pi-  0.  Eisenlord   . 

Litchfleld  0.  Vernon 

«.  White 

Livingston  0.  McDonald    . 

— — — —  0.  Proseus 

Lobdell  0.  StoweU  . 

Lomer  0.  Meeker     . 

Long  0.  N.  Y.  Cent  R.  R  Co. 

Longendyke  0.  Longendyke 

Lord  0.  Ostrander  .  .  . 

0.  Wilkinson 

Lori  Hard  0.  Town  of  Munroe 
Lowell  0.  B.  A.  and  L  R.  R.  Co. 
Luce  0.  Dunham     . 
Lynch  0.  Crary 


1  H.  L.  Cases,  498;  8  Scotch 
Seas.  Cases  (3d  series),  47    . 


71 


M. 


5  Wend.  301 
80  N.  Y.  368 

20  N.  Y.  268 
25  Wend.  448 
McN.  &  G.  551 

47  Barb.  317  . 

12  Alb.  Law  Jour.  185 

49  How.  Pr.  218 
19  Barb.  283  . 

10  Barb.  254   . 
4  Binney,  352 
2  Hill,  201       . 

40  N.  Y.  442  . 

2  J.  B.  Moore,  588      . 

48  Barb.  641,  648 

6  Hill,  328       . 
88  Conn.  294  . 
115  Mass.  86  . 

4  E.  D.  Smith,  285     . 
32  N.  Y.  229  (opp.  p.),  238 

41  N.  Y.  123    . 
8  Seld.  438      . 

21  Iowa,  160  . 
2  Hill,  526 

37  How.  Pr.  88 
25  N.  Y.  863  . 

50  N.  Y.  76  . 
44  Barb.  366  . 
43  Barb.  339  . 
56  Barb.  593  . 

11  N.  Y.  392  . 
23  Pick.  24   . 

7  Hun,  202   . 
52  N.  Y.  183  . 


173 
.   9 

81,  118,  174,  228 
.  389 
.  627 
.  555 
829,  332 
486,  493 
.  366 
.  270 
.  376 
.  454 
.  408 
.  203 
.  381 
.  571 
.  399 
.  391 


Mack  0.  Patchin     . 

Macomber  0.  Parker  .  .  . 

Magee  0.  Badger  .  . 

-0.  Cutler      .  .  . 

Malcom  0.  Rogers  . 

Mallory  0.  Norton  .... 
Manhattan  Brass  and  Mfg.  Co.  *.  Thomp- 
son ..... 
Marine  Bank  0.  Wright 
Marsh  0.  City  of  Brooklyn 
0.  Town  of  Little  Valley    . 

Marshall  0.  Enox   .  .  .  .  | 


42  N.  Y.  167 
18  Pick.  175 
84  N.  Y.  247 

43  Barb.  239 
5  Cow.  188 
21  Barb.  424 

58  N.  Y.  80 


561 
,  9P 
124 
591 
339 
325 
430 
299 
317 
232 
310 
40 
576 
470 
434 


339 
264 
810 
57 
535 
353 

478 


48  N.  Y.  1   .     .  .250 

59N.Y.280  .     .  .88 

4  N.  Y.  8.  C.  118  .644 

16  Wall.  551;  8  Nat.  Bank 

Reg.  104  .  .  161 


TABLE  OF  CASES  CITED. 


Martin  «.  Brooklyn 

e.  Hawks    . 

v.  Hunter's 

Mason  v.  Brown     .... 

«.  Denison  .... 

Matter  of  Basford 

Bernstein  .  . 

Blodgett .... 

Burke     .... 

Douglass .... 

Duff        . 

Josephine 

Meyer     .... 

N.  Y.  Prot.  Epis.  Public  School 

Phillips  . 

S.  B.  and  N.  Y.  R  R  Go. 

Sharp      .... 

—  Union  Ins.  Co.    . 

Van  Antwerp     . 

Willoughby 

Winne     .  . 

Mayer  v.  Hellman 

Mayor  of  Albany  v.  Cunliff 

Mayor  of  Troy  v.  T.  and  0.  R.  B.  Co.      . 

Maximilian  v.  The  Mayor  . 

Maxon  v.  Scott        .... 

McCarthy  v.  Syracuse 

McCosker  v.  Golden 

McKay  v.  Draper    .... 

McVeary  «.  Mayor .... 

Meakings  v.  Cromwell 

Merchants'  Ins.  Co.  «.  Hinman 

Merchants'  Nat.  Bank  v.  Comstock 

Mech.  and  Traders'  Bank  of  Jersey  City  t>. 
Dakin       .  . 

Meriam  v.  Rundlett 

Met.  Board  of  Excise  v.  Barrie 

Michaud  v.  Girod    .... 

Miller  v.  McCarr     .  . 

Mills  «.  City  of  Brooklyn   . 

Moakley  v.  Riggs    . 

Molton  v.  Camroux  .  . 

Moody  v.  Mayor     .... 

Moore  ».  Cross         .... 

v.  Gardner    .... 

Morris  v.  Ward       .... 

Mott  v.  Palmer        .... 

Mumford  v.  Withey 

Munford  v.  Overseers 

Murfey  v.  Brace      .... 

Hurray*.  H.  R.  R.  R  Co. 


PAGK. 

1  Hill,  545   . 

.  40 

15  Johns.  405  . 

.  139 

1  Wheaton,  355 

.  436 

6  How.  481  . 

.  235 

15  Wend.  64  . 

.  358 

50  N.  Y.  509  . 

.  514 

Nat.  Bank  Reg.  Sup.  48 

.  161 

Not  yet  reported 

.  459 

62  N.  Y.  224  . 

.  514 

58  Barb.  174  . 

535 

41  How.  350  . 

.  548 

89  N.  Y.  19  . 

.  325 

50  N.  Y.  505  . 

.  458 

47  N.  Y.  556  . 

.  535 

60  N.  Y.  16  . 

.  514 

4  Hun,  311   . 

.  36 

56  N.  Y.  257  . 

.  33 

22  Wend.  600. 

.  579 

66  N.  Y.  261  . 

.  99 

11  Paige,  257  . 

.  627 

2  Lans.  21 

.  610 

1  Otto,  496  . 

.  519 

2  Comst.  165  . 

.  391 

Court  of  App.  Apr.  1873 

.  576 

2  Hun,  263   . 

.  40 

Ct.  of  App.  not  reported 

474 

46  N.  Y.  194  . 

593 

1  Bradf.  64  . 

470 

27  N.  Y.  256  . 

.  595 

1  Hun,  35 

441 

1  Seld.  136   . 

.  568 

34  Barb.  410  . 

.  470 

55  N.  Y.  29  . 

.  164 

51  N.  Y.  519  . 

.  432 

13  Pick.  511  . 

.  882 

34  N.  Y.  657  . 

.  113 

4  How.  S.  C.  608 

.  209 

7  Paige,  451  . 

.  405 

32  N.  Y.  496  . 

.  590 

19  Johns.  72  . 

.  229 

2Exch.  487;  4  id.,  17 

.  331 

43  Barb.  282  . 

.  301 

19  N.  Y.  227  . 

.  240 

6  How.  Pr.  248 

.  236 

86  N.  Y.  587  . 

.  270 

1  Comst.  564  . 

.  543 

1  Wend.  279  . 

.  282 

2  Rand.  313  . 

.  876 

28  Barb.  561  . 

.  638 

47  Barb.  196;  48  N.  T.  666,  a 

.  289 

Z1IV 


TABLE  OF  CASES  CITED. 


MMb 


Murray  r.  Burling  . 
Miuier  0.  Trumpbour 
Mygatt  9.  Washburn 


N. 


Naah  9.  Brown  •  •  • 

Nathan  e.  Giles       . 

Nat  Bank  of  Fishkill  t.  Speight 

Nellia  c.  N.  Y.  Central  R  R.  Co.   . 

Nesbitt  c.  Barridge  • 

Nilea  o.  Lindsley     . 

Nicoll  9.  N.  Y.  and  Erie  R  R  Co. 

Nodine  e.  Doherty  .  .  .    • 

Norwood  v.  Guerdon 

Noyes  «.  Blakeman 

9.  Smith       ,  .  .  • 

N.  Y.  and  Erie  R  R  Co.  t>.  Purdy 
N.  Y.  and  Harlem  R  R  Co.  t>.  Hawa 
N.  T.  8.  Marine  Ins.  Co.  «.  Protection  Ins. 
Co.  .... 


O. 


O'Brien  «.  McCann 
O'Gara  t>.  Eisenlohr 
Olcott  0.  Robinson  . 
Osborn  t>.  Phelps 
Osterhout 9.  Shoemaker 
Ousten  «.  Hebden   . 
Owen  v.  Cawley 


10  Johns.  172 
5  Wend.  274 
15  N.  Y.  816 


6  Man.  G.  &  S.  584 
6  Taunt  558  . 
47  N.  Y.  668    .         ' 
SON.  Y.  505    . 
10  Jurist  (N.  8.),  58 
1  Duer,  610     . 
12  N.  Y.  128  . 
46  Barb.  59      . 
60  111.  253       . 
2Seld.667      . 
28  Vt.  59         ; 
18  Barb.  574   . 
56  N.  Y.  175,  181 

[  1  Story,  458    . 


58  N.  Y.  373,  376  . 

88  N.  Y.  296  .  . 

21  N.  Y.  150  .  . 

19  Conn.  63,  89  . 

8  Hill,  516      .  . 

1  Wilson  Rep.  101  . 

86  N.  Y.  600;  27  id.  35 


.  512 
.250 
.302 
.  581 
.  879 
.282 
.423 
.18 
.  399 
.5 
.  257 
.  87 
851,  404 

.877 


376 

71 

45 

423 

329 

824 

473 


Parish  «.  Stone 
Parker  «.  City  of  Syracuse 
Parkes  «.  Brinkerhoff 
Parks  v.  Morris  Ax  Co. 
Patterson  v.  Perry  . 

v.  Wallace 

Peabody  t>.  Roberts 

Peach  9.  Lemon 

Peck  9.  N.  Y.  C.  and  H.  R  R  R  Co. 

Penfield  e.  Rich      . 

Perm  v.  Remsen 

People  9.  Allen 

9.  Assessors  of  Albany 

* 9.  Att'y  GenL 

9.  Briggs      . 

9.  Commissioners     . 

9.  Com.  Council  of  Rochester 

9.  Fuller      .          f^ 

«.  Gates 


14  Pick.  198,209  '..  .512 

81  N.  Y.  379  .  .  .  247 

2  Hill,  663       -  .  .  239 

54  N.  Y.  586  .  .  452 

14  How.  505    .  .  .  505 

28  Eng.  L.  and  E.  48  .  258 

47  Barb.  92     .  .  377 

1  Lans.  295     .  .  .     68 

4  Hun,  236     .  .  .287 

1  Wend.  380  .  .  .172 
24  How.  503  .  .  .  632 

5  Den.,  76      .  .  .804 

2  Hun,  583  .  .  .  539 
22  Barb.  114  .  .  .335 
50  N.  Y.  558  .  .  .  492 
4  Wall.  244  .  .  .539 
50  N.  Y.  525  .  .  .492 
40  How.  87  .  .  .858 
13  Wend.  317  .  305 


TABLE  OF  CASES  CITED. 


XXV 


Peoples.  Gay         .  • 

•••         «.  Hayes       .  .  .  . 

v.  Hynds     .        .<IiA 

«.  Jones 

«.  Judges  of  Dutchess 

— — —  v.  Lawrence  . 

«.  McCann  .... 

D.  Murray    . 

v.  N.  Y.  Cent  R.  R.  Co.    . 

— —  t>.  O'Brien    .... 

v.  Sup.  of  Allegany 

D.  Sup.  of  Chenango 

1>.  Sup.  of  Queens  . 

«.  Taylor     .... 

1>.  Tweed     .... 

v.  White      . 

v.  Williams  .        ?*+>;:        . 

People  ex  rel.  Agnew  «.  Mayor     . 

A.  and   8.    R.   R.    Co.  «. 

Mitchell  ..... 
People  ex  rel.  Buckley  v.  Benton  . 

Cooke  v.  Com.  of  Highways 

Corwin  v.  Walter    . 

Davis  ».  Hill 

Dolan  «.  Lane 

Thatcher  v.  N.  Y.  Com,  Asso. 

Tompkins  v.  Landreth 

Perkins  «.  Perkins 

v.  Squires  . 

Perrin  ».  N.  Y.  Cent.  R.  R.  Co.     . 

Peterson  D.  Knoble 

Petrie  v.  Petrie 

Petty  0.  Harnum    .... 

Phillpots  v.  Evans . 

Picard  v.  Collins     .  / 

Pickering  v.  De  Rochemont 

Plasket  v.  Beeby     .... 

Platt  v.  Beebe        .... 

Porter  v.  N.  Y.  Cent  R.  R.  Co.     . 

Potter  v.  Merchants'  Bank 

Prentiss  ®.  Graves  .... 

Preston  v.  City  of  Boston  .  . 

Pugsley  v.  Aikin     . 


7N.  Y.  878  . 
7  How.  248  . 
80  N.  Y.  472  . 
17  Wend.  81  . 

28  Wend.  861 

41  N.  Y.  123,  189 
16  N.  Y.  58    . 
6  Hun,  42    -»: 

29  N.  Y.  418  . 
88  N.  Y.  193  . 
15  Wend.  198. 
4  Seld.  317      . 
1  Hill,  195,  199 
3  Deuio,  91     . 


PAS* 

.  664 
.  234 
.  567 
.  679 
.  358 
.  492 
.  469 
.  677 
.  648 
.  491 
.  57 
.  98 
.  278 
,  88 


13  Abb.  (N.  S.)  419  .   284,  236 

59  Barb.  666  .     .  .  610 

3N.  Y.  S.  C.  (T.  AC.) 889  .  99 

2  Hill,  13        .  .57 

•  35  N.  Y.  551  .     .  .99 

29  N.  Y.  524  .     .   486,  490 

57  N.  Y.  550  .     .  .  357 

4  N.  Y.  S.  C.  (T.  &  C.)  688  .  57 

1  N.  Y.  S.  C.  (T.  &  C.)  154  .  57 

55  N.  Y.  217  .     .  .442 
18  Abb.  Pr.  271    .   220,  221 

4  N.  Y.  S.  C.  (T.  &  C.)  184  .  57 
62  Barb.  531       .  .  316 

1  N.  Y.  8.  C.  (T.  &  0.)  620  .  223 
36  N.  Y.  120  .     .  .  477 
35  Wis.  80   .     .  .  820 
7Lans.  90   .     .  .198 

2  Humph.  102     .  .  612 

5  M.  &  W.  475     .  .  203 
23  Barb.  444  .     .  .891 
45  N.  H.  78  .     .  .  199 
4  East,  485   .     .  .  851 
57  N.  Y.  339  .     .  .  512 
84  Barb.  358  .  .  581 
28  N.  Y.  641  .     .   812,  651 
38  Barb.  621  .     .  .  173 
12  Pick.  7   .     .  .416 
1  Kern.  497  ,  54 


Q. 


Quin  v.  Mayor 
Quinn  n  Mayor 


44  How.  266 
63  Barb.  595 


493 
482 


Ramsey «.  Gould   .        .   . 
Ransom  v.  Nichols  , 

HUN— VOT   "VTH 


67  Barb.  398 
22  N.  Y.  110 


.    64 
470,  610 


XXTi 


TABLE  OF  CASKS  CITED. 


Raphael  «.  Bank  of  England 

Ra«quin  r.  Knickerbocker  Stage  Co. 
Rathbone  «.  Ho.mey 

c.  Warren 

Raw  son  c.  Peun.  R,  R  Co. 

RedUch  e.  Doll 

Reedr.  Underbill  .  >«    • 

Ref .  etc.  Church  «.  Brown 

Reg.  r.  Beard         .         ''  .  . 

r  Parish       '.'•      -  .' 

v.  Pelham       .  .  * 

Reqna  v.  City  of  Rochester 

Rex  c.  Forbes         .  . 

v.  Price       '.  '*\   ' 

Ricard  t.  Sanderson  . 

Richards  z».  Waring          > . 

Richtmyer  v.  Richtmyer     . 

Riddle  v.  Varnum 

Ripleyr.  McClure  . 

Roberts  v.  Cooper 

Robbins  v.  City  of  Chicago 

Robinson  v.  Swift  . 

R  White  Lead  Co.  v.  City  of  Rochester 

Roe  «.  Tranmer 

Rogers  v.  Smith 

Rood  t>.  N.  Y.  and  Erie  R  R  Co.  . 

Rounds  e.  D.  L.  and  W.  R  R  Co. 

Row  r.  Sherwood  . 

Royce  v.  Burt  ;,' 

Rubens  t».  Prindle  . 

Russell  v.  Carriugton 

— -  9.  The  Mayor 

Ryan  «.  Fowler 

«.  Ward 


8. 


Safford  v.  Wyckoff 
Sanford  «.  Mayor    . 
Savage  t>.  Allen 
Schneider  v.  Hosier 
Schuchardt  v.  Mayor 
Schultz  v.  Schultz  . 
Scott «.  Campbell   . 
Seaman  v.  Luce 
Seely  t>.  Birdsall      . 
Sentance  v.  Poole    . 
Sergeson  t>.  Sealey  . 
•Seymour  v.  Judd    . 
v.  Wyckoff 


MM, 

(  17  C.  B.  161;88Eng.L.andE. 

\  276  .     .     .  •  310 

12  Abb.  Pr.  834    .  .  130 

58  N.  Y.  468  .     .  -  33 

10  Johns.  587      .  .405 

48  N.  Y.  212  .  .  316 

54  N.  Y.  284  .     .  .  144 

12  Barb.  118  .     .  .  568 

24  How.  76  .     .  .646 

8  C.  &  P.  143      .  .  624 

8C.  &P.  94  .     .  .  624 

4  N.  Y.  Leg.  Oba.  899  .  304 

45  N.  Y.  180  .     .  894,  427 

7  C.  &  P.  224  .     .  624 

6  East,  323,  327    .  .  367 

41  N.  Y.  179  .     .  .  118 

1  Keyes,  576  .           ...  240 
50  Barb.  55     .            ..  .     54 
20  Pick.  280                 .  .  264 
4Exch.  345     .            .  .  203 
20  How.  (U.  8.)  480    .  .  430 

4  Wall.  657      .         -  .    -  .  571 
3  Vt.  283                      .  .  3oO 
3  N.  Y.  464     .            .  366.  593 

2  Smith's  Lead.  Cases  (7th 

Am.  ed.),  461,  n.    .  .  423 

5  Hun,  475      .            .  .     ft9 
18  Barb.  80     .            .  .601 

2  N.  Y.  W.  Dig.  260  .  .  387 

6  Johns.  109    .            .  .  2>1 

42  Barb.  655    .            .  .  40:3 
44  Barb.  836   .            .  .  374 

43  N.  Y.  119    .            .  346,  269 

3  Den.  414        .  .  40 
24  N.  Y.  410  .     .  .  257 
48N..Y.  204  .  .447 


4  Hill,  442  .  .  .347 

83  Barb.  147  .  .  .  415 

54  N.  Y.  458  .  .  "404 

21  Ohio,  98  .  .  .320 

53  N.  Y.  202  .  .  .  406 

85  1ST.  Y.  658  .  .  .  108 

80  Ala.  729  .  .  .  199 

23  Barb.  240  .  .  .  292 

15  Johns.  268  .  .  234 

8  C.  &  P.  1  .  .  .833 

3  Atk.  412  .  .  .  829 

2  N.  Y.  464  .  .  .16 

10  N.  Y.  213  .  .  254 


TABLE  OF  CASES  CITED. 


ZXVll 


Shackelton  v.  Hart  .  .  ';/. 

Shank  «.  Shoemaker  , 

Sheldon®.  Wright  . 
Shellington  0.  Howland 
Sheldon  0.  Hudson  R.  R.  R.  Co. 
Sherred  0.  Cisco 
Shipley  v.  Fifty  Associates 
Silsbury  v.  McCoon 
Simpson  v.  Clarke  . 
Skrine  0.  Sloop  Hope 
Slocum  v.  Hooker   .     ^ 
Smith  v.  Allen 

v.  Compton  . 


v.  Mason       .  .  . 

0.  Mayor       .  .  . 

v.  Slade 

0.  Smith       .  . 

v.  Townsend 

Sorchan  0.  City  of  Brooklyn 
Spooner  0.  Brooklyn  R.  R.  Co. 
State  v.  Colerick 

v.  Qoold 

State  ex  rel.  Henshall  v.  Luddington 
State  of  Michigan  v.  Phoenix  Bank 
Steamboat  Orleans  v.  Phoebus 
Stephen  v.  Smith     . 
Stephens  v.  Van  Buren       .  . 

Stevens  0.  Corn  Ex.  Bank  . 
Stoddard  v.  Kimball 

v.  Hart 

Stokes  0.  Saltonstall 

Storrs  0.  City  of  Utica 

Stoughton  0.  Porter  .  . 

Stow  0.  Tiff  t 

Strelly  0.  Winson 

Sturges  0.  Spofford 

Sullivan  0.  Mayor    . 

Sunderland  0.  Loder 

Susquehanna  Bank  0.  Sup.  of  Broome 

Suydam  0.  Bartle    .  .  . 

Sweet  0.  Bartlett 

0.  Tuttle 

Bwords  0.  Edgar     . 
0.  Owen 


12  Abb.  Pr.  325,  n.  .  .  138 

18  N.  Y.  489  .        ,'  .'  .  138 

5N.  Y.  497   .'.'  '.'  .    45 

53  N.  Y.  375  .  .  .  164 
29  Barb.  227;  4  Kern.  224      .  600 
4  Sandf .  S.  C.  480  .  .  243 
101  Mass.  251;  106  id.  194      .  390 

3  Cow.  379,  390  .  .  399 

2  Cromp.  M.  &  R.  343  .  512 
Bee's  Adm.  Rep.  2  .  .324 

13  Barb.  536  .  .  .  354 

I  Lans.  101     .  .  .  307 
(  3  Barn.  &  Adol.  407;  23  Eng. 

\  Com.  106  .  .  .  377 

14  Wall.  419  .  .  .  161 
37  N.  Y.  518  .  .  .  442 

57  Barb.  641  .  .  .  292 

4  Rand.  95  .  .  325 
25  N.  Y.  479  .  .  .  223 
6  K  Y.  S.  C.  (T.  &  0.)  816  .  99 

54  N.  Y.  230  .  .  .  498 

3  Hammond,  487  .  .  376 
53  Maine,  279  .       580,  582 
33  Wis.  107     .  .  .  320 
33  N.  Y.  9      .  .  .  351 

II  Pet.  181      .  .  .  S24 
29  Verm.  160  .  .  .  580 
1  Paige,  479   .  .  .  352 

3  Hun,  147     .  .  .  512 
6  Cush.  469     .  .  .  512 
23  N.  Y.  556  .  .  .  606 
13  Peters,  181  .  .  394 
17  K  Y.  104  .  .  .  574 

13  Allen,  191  .  .  .  576 

15  Johns.  468  .  .  423 
1  Ver.  297       .  .  .  824 

58  K  Y.  103  .  .  .  524 
53  N. Y.  652  .  .  .  492 

5  Wend.  59     .  .  .  632 
25  K  Y.  812  .  .  .     57 
9  Paige,  294   .  .  .  875 

4  Sandf.  661  .  .  .  139 

14  N.  Y.  465  .  .  .  402 

59  N.  Y.  28    .  .  .  391 
43  How.  176    .  .  346 


Terry  0.  Wait 

0.  Wheeler    . 

Terwilliger  0.  Knapp 
Thayer  r>.  City  of  Boston 


56  N.  Y.  91  . 
25  N.  Y.  522  . 
2  E.  D.  Smith,  86 
19  Pick.  511 


482,  484 
.  246 
.  202 


UVU1 


TABLE  OF  CASES  CITED. 


TheBolfet 

The  Binghamton  Bridge    . 

The  International  etc.  t.  Bwflfttland 

The  Tigress  .  . 

Thomas  0.  Winchester 

Thompson  r.  Laing  • 

Thorp  «•  Keokuk  Coal  Co. 

Thrasher  t>.  Bentley 

Tliurber  c.  Blanck  . 

Timon  t>.  Clafly  . 

Tinuey  r.  Stebbins 

Town  of  Guilford  «.  Cooley 

Town  of  Lewis  «.  Marshall 

Townsend  t>.  Goewey 

t>.  Townsend 

Train  «.  Gold 

Tripp  v.  Riley 

Trotter  r.  Hughes    . 

Trubee  t>.  Alden     . 

Truscott  v.  King     . 

Truly  e.  Wanzer     .  .  . 

Tunno  v.  The  Betsino 

Twinam  t>.  Swart 

Fyler  «.  Strong 


Otter  ».  Gifford 


u. 


7  Wall  634  .  .  -885 

8  WalL  51  .  .  896 
14  Abb.  Pr.  240  .  -  236 
Brown.  &  Lush.  48  .  260 
6  N.  Y.  897  .  .268 
8  Bos.  482   .  .  .202 
48  N.  Y.  268  .  .  •  118 
69  N.  Y.  649  .  .  .  519 
60  N.  Y.  80  .  .  .432 
45  Barb.  488  .  .  .108 
28  Barb.  290  .  .325 
68  N.  Y.  121  .  .  .  154 
66  N.  Y.  668  .  .  154 
19  Wend.  424  .  .198 
2  Sandf.  Sup.  Ct.  711  .  317 
6  Pick.  380  .  .  .  876 
16  Barb.  334  .  .325 
12  N.  Y.  74  .  .  .80 
6  Hun,  75   »  .  .382 
6  N.  Y.  147  .  .  .605 
6  How.  (U.  8.)  141  .  .  351 
5  Am.  Law  Reg.  406  .  .324 
4  Lans.  263  .  .292 
21  Barb.  200  .  .264 


25  How.  297  . 


Vallett «.  Parker    . 
Van  Allen  r.  The  Assessors 
Van  Alstyne  e.  McCarty    . 
Van  Bramer  v.  Cooper 
Vandenburgh  t>.  Truax      .  . 

v.  Hull 

Vanderheyden  t.  Young 
Van  Deusen  «.  Sweet 
Van  Kleeck  e.  LeRoy 
Van  Rensselaer  r>.  Aikin    . 
Venning  t).  Leckie 
Village  of  Deposit  «.  Vail  . 
Village  of  Gloversville  v.  Howell  . 
Voorhis  v.  Voorhis 


Waggoner  «.  Jermaine 

Wakeman  «.  Gowdy 

Walsh  v.  Kelly 

Ward  «.  Cent.  Park  etc.  R  R  Co. 

Warner  c.  Erie  Railway  Co. 


w. 


6  Wend.  615  .  .  347 
8  Wall.  573     .  .  539 
51  Barb.  326  .  .  .571 
2  Johns.  279   .  .  .354 
4  Den.  464      ..  258 
20  Wend.  78  .  .  655 

11  Johns.  150  .  .  366 
51  N.  Y.  378,  386  .  .329 
37  Barb.  544  .  .  .638 
44  N.  Y.  136  .  .  .  647 
18  East,  7        .  .  .199 

12  8.  C.  N.  Y.  310  .  .  318 

7  Hun,  345   .  .  .  819 
50  Barb.  119;  39  N  Y.  468  .108 


3  Denio,  306  . 
10  Bosw.  208,  218 
40  N.  Y.  556  . 
42  How.  289  . 
39  N.  Y.  468  . 


.  391 

.  328 

894,  427 

.  498 

.  367 


TABLE  OF  CASES  CITED. 


XXlA 


Washington  Bridge  Co.  «.  Stewart 
Washington  Cemetery  v.  P.  P.  and  C. 

R.  R  Co. 
Watson's  Case 

Watson's  Rep.  t>.  Riley's  Adm, 
W  eaver  ».  Devendorf 
Weir  v.  Groat 
Welch  v.  Hazelton  . 
Welch  v.  Sage 
Whalen  v.  Gloucester 
Wheeler  v.  Brady  . 

».  City  of  Chicago 

v.  Raymond         . 

Whichcote  v.  Lawrence 

White  V,  Brownell  ... 

Whitmore  t>.  Mayor 

Whitney  c.  Whitney 

Whitridge  v.  Barry  . 

Wiffen  «.  Roberts    . 

Wilcox  «.  Hawley  . 

Willetts  «.  Ridgway  . 

Williams  v.  Hutchinson 

v.  Jackman          . 

v.  People  ,  . 

Willis  v.  Long  Island  R.  R.  Co.      . 

Wilson  v.  Mayor 

Winans  v.  Peebles  .  .  . 

Winstead  Bank  v.  Webb    . 

Witbeck  v.  Waine 

Woburn  v.  Henshaw 

Wood  v.  Hollister   . 

«.  Morehouse  . 

Woodruff  v.  Cook  . 

Wright  0.  Crapsey  .  .  . 

r>.  Miller 

v.  Wright    . 

Wrisleys  v.  Kenyon 

Wyman  v.  Parnsworth        .  . 


MM 

8  How.  (U.  8.)  413  .  .486 

?  Hun,  655     ,.  .  .    81 

2  E.  D.  Smith,  439  .  .439 

2  Harris  &  GUI,  305  .  .  169 

3  Denio,  119   .  .  .366 

4  Hun,  193      .  .  .  807 
14  How.  Pr.  97  .  .  232 
47  N.  Y.  143  .  .  .  310 
4  Hun,  24       .  .  .891 

2  Hun,  347     .  .  .  437 
24111.105        .  .  .536 

8  Cow.  311      .  .  .  383 
Cited  in  22  K  Y.  327  .  206 

4  Abb.  Pr.  (N.  S.)  192  .  220 

5  Hun,  195   .     .  486,  498 
49  Barb.  319  .  .  .  316 
42  Md.  140   .  .  .400 
1  Esp.  261   .  .  .  612 
31  N.  Y.  655  .  .  .  292 

9  Ind.  367   .  .  .  535 

3  Comst.  312  .  .  .     89 
16  Gray  (82  Mass.),  517  .  245 
24  N.  Y.  405  .  .  .480 
34  N.  Y.  670  .  .  .  498 
1  Denio,  595  .  .  366,  590 
82  N.  Y.  423  .  .  .  317 
39  N.  Y.  330  .  .  .  561 
16  N.  Y.  532  .  .  .  299 
101  Mass.  193  .  576 
3  Abb.  Pr.  16  n.  .  .  236 
45  N.  Y.  368  .  .  .45 
47  Barb.  304  .  .  .  273 
1  Penn. 112     .  .  .  199 
1  Sandf.  Ch.  103  .  .  352 
54  N.  Y.  437  .  .  317 
28  Verm.  5     .  .  .350 
3  Barb.  369     .  .  415 


Yale  v.  Dederer 
Yates  v.  Lansing 
Youngs  v.  Lee 
Young  v.  Stevens 


18  N.  Y.265;  22  id.  460  474 

5  Johns.  282;  9  id.  396  .  866 

18  Barb.  192, 193;  2 Kern.  551   512 
48  N.  H.  138  .  .831 


STATUTES  CITED. 


New  York  Constitution, 

article?       .           •           • 

MM. 

98 

REVISED  STATUTES. 

PA8B. 

VoL    1,  116,  §  5 

485,487 

VoL    2,    96,   §75 

470 

867 

.     644 

97,   §79 

383,   §95 

.    487 

236,    §57 

232 

898,    §17 

.    589 

892,  §§    3,  10       . 

456 

619,    §89 

.     857 

473,  §§  92,  98 

154 

574,   §57 

.    857 

602,    §66 

295 

729,    §56 

.    568 

728,    §5a 

306 

VoL    8,    75,   §29 

.    470 

pt.  2,  chap.  6,  tit.  1,  §§  42, 

88,  §§84,  88 

.    801                     68,67    . 

108 

REVISED  STATUTES  (2d  ed.): 

VoL  8(m.p.),187,  §1 

•                      ••••*• 

20 

REVISED  STATUTES  (5th  ed.): 

VoL    1,879 

490,491    Vol.    3,  779,  §§    1.3 

584 

VoL    8,240,    §80 

.     400 

781,    §15 

534 

739,    §98 

.     536 

REVISED  STATUTES  (6th  ed.): 

VoL   1,  845,  §§  65,  66,  67,  68       .    278  1  VoL   8,  116,    §  55 

611 

REVISED  STATUTES  (Edmonds'  ed.). 

VoL   1,    96 

.    485 

VoL    2,    81,  chap.  5,  tit  1,  art  6 

438 

98,    §15 

.     485 

199,  §  153 

375 

107,    §   8 

.     483 

710,  §    11 

303 

SESSION  LAWS: 

1805,  Chap.  89     . 

.    293 

1857,  Chap.  228      . 

581 

1882,     ••     224     . 

.      8 

1857,     "     409      . 

485 

1847,     "     495     . 

.    276 

1858,     "      338,    §    5 

416 

1850,     "     102,    §18 

.      86 

1859,     "      134      .      l 

290 

1850,     "     140,    §18 

.      85 

1860,     "       90,    §    1       . 

306 

1850,     "      150      . 

.    611 

1860,     "      160      . 

580 

1851,     "      176,    §    5 

.     178 

1860,     "      348,    §    3 

518 

1851,     "     441,    §   8 

.    485 

1860,     "     509      . 

481 

1864,     "     282      . 

.      86 

1860,     "     510      . 

248 

1854,     "     402,  §§    6,7,10          .     641 

1861,     "     240      . 

481 

1856,     "     164      . 

.     298 

1862,      "       63,    §41 

33 

1855,     "     511,    §    4 

.     885 

1862,     "      172,    §    7 

87 

SECTIONS  OF  THE  CODE  CITED. 


XJCXl 


FA6B. 

MOb 

1869,  Chap.  462   . 

.   481 

1870,  Chap.  652   . 

88 

1862,  "  478  . 

.   20 

1871,  "  461,  tit.  11,  §  19 

59 

1863,  "  108  . 

.  481 

1871,  «•  461,  chap.  1,  tit.  8,  § 

1864,  "  404  . 

.  481 

14,  sub.  5 

58 

1865,  "  605 

.  481 

1871,  "  583     481,  488,  487, 

492 

1866,      8  . 

.  485 

1871,  "  695 

94 

1866,  "  647  '., 

.   93 

1871,  "  721,  §§  22,  28,  40 

619 

1866,  "  784  . 

.  485 

1871,  "  839   . 

37 

1866,  "  761   . 

.  539 

1872,  "  468,  §97 

278 

1866,  "  887   . 

.  481 

1872,  "  580,  §  5 

226 

1867,  "  834  . 

.  371 

1872,  "  580,  §  7   . 

458 

1867,  "  697   . 

.  479 

1872,  "  587   . 

485 

1867,  "  884,  §  1 

.  871 

1873,  "  757,  §  16 

371 

1867,  "  782   . 

.  470 

1873,  "  330   . 

318 

1867,  "  806   . 

.  481 

1873,  "  335,  §§  25,  26,  27,  28, 

1867,  "  958   . 

.  340 

29,90,91,112 

248 

1868,  "   82   . 

.  341 

1873,   '•   335,  §28 

447 

1868,  "  817   . 

.  340 

1873,  "  335,  §  97 

494 

1868,  "  818   . 

.   44 

1873,  "  489,  §§1,6,10  145,146, 

613 

1868,  "  854   . 

481,  485 

1878,  "  835,  §86   . 

371 

1869,  "   97,  §  8 

.  284 

1873,  "  335,  §96 

371 

1869,  "  855   . 

.   94 

1873,  "  646,  .     .     17, 

149 

1869,  "  875   . 

481 

1873,  "  646,  §  1 

129 

1870,  "  175   . 

60,  578 

1873,  "  820   .     .    284, 

318 

1870,  "  190  . 

.  481 

1874,  "  387   . 

38 

1870,  "  382  .     481, 

487,  489 

1874,  "  444   . 

318 

1870,  "  888   . 

.  490 

1874,  "  600   . 

518 

1870,  ••  410,  §§1,8,  . 

.  411 

1876,  "  442   . 

509 

SECTIONS 

OF  THE  CODE  CITED. 

ft  81   . 

.  282 

§  274   .              67, 

404 

§  69   . 

.   84 

§275   . 

6? 

§§88,84,85   . 

268,  269 

§  287 

67 

§  118   . 

.  154 

§  806             .    885, 

524 

§  118 

.  200 

§  341   . 

527 

§§  118,  119 

.   54 

§  348   . 

389 

§  119   . 

.   64 

§  849,  sub.  2   ... 

389 

§  122   . 

.  404 

§§  352,  855     ... 

15 

§  124 

284,238 

§860   . 

822 

§  126,  nab.  8 

.  285 

§  891 

465 

§§  144,  147,  148  . 

.  578 

§  892 

456 

§§  149,  150 

.  282 

§  899        .     .    188, 

177 

§§  158,  168-81   . 

.  282 

§§  417,  418     ... 

457 

§§  195,  198 

.  527 

§  449   . 

885 

§264   . 

.  889 

§452   . 

278 

*  285 

389,  629 

Rule  36      ... 

581 

DETERMINED  IN   THE 


SECOND    DEPARTMENT 


AT 


GE^EEAL     TEEM, 
gtttt*,  1876. 


FRANKLIN     G.     TAYLOR,    APPELLANT,    v.    JONATHAN 
EARLE,  IMPLEADED  WITH  THE  BURLINGTON   COTTON 

MILLS    AND   OTHERS,    RESPONDENTS. 

Corporation — Sale  of  the  entire  property  of  one  corporation,  for  stock  of  another  — 
Mights  of  stockholders  — Acts  of  majority  of,  do  not  bind  minority. 

A  corporation,  organized  under  the  laws  of  the  State  of  New  York,  has  no  power 
to  transfer  all  its  property  and  thus  terminate  its  existence,  and  take  in  payment 
stock  in  a  foreign  corporation  carrying  on  the  same  business.* 

Under  the  laws  of  this  State,  the  majority  of  the  stockholders  of  a  corporation 
cannot  bind  the  non-consenting  minority  to  a  sale  of  its  entire  property,  made 
for  the  purpose  and  merely  as  a  form  of  turning  a  New  York  company  into 
a  Vermont  one,  so  as  to  escape  the  scrutiny  into  its  affairs  permitted  to  a 
stockholder  by  the  New  York  laws. 

A  stockholder,  under  the  New  York  law,  becomes  such  under  the  security  thereof 
and  when  this  is  taken  from  him  has  the  right  to  have  the  property  of  his  cor 
poration  applied  to  the  payment  of  its  debts,  and  the  surplus,  if  any,  dividec 
among  the  stockholders. 

APPEAL  from  a  judgment  of  the  Special  Term  dismissing  plain 
tiff's  complaint. 

The  plaintiff  was  a  stockholder  in  the  Burlington  Cotton  Mills, 

A  manufacturing  corporation  organized  under  the  general  laws  of 

this  State  about  August  14, 1866,  whose  principal  office  and  place  of 

business  was  in  the  city  of  New  York.     The  corporation  about  the 

*  To  same  effect,  see  Frothingham  v.  Barney,  6  Hun,  866.— [RHP. 


TAYLOR  u.  EARLE. 


SECOND  DEPARTMENT,  JUNE  TERM,  1876. 


time  of  its  organization  purchased  real  estate,  mills  thereon, 
machinery  and  water  privileges  at  Burlington,  in  the  State  of  Ver- 
mont. About  January  9,  1875,  at  a  meeting  of  the  stockholders, 
it  was  resolved  by  the  holders  of  a  majority  of  the  stock  to  sell  the 
property  of  the  corporation  to  the  Burlington  Cotton  Mills  Com 
pany,  a  corporation  created  by  the  laws  of  Vermont,  and  take  r. 
payment  thereof  1,747  shares  of  the  stock  of  the  latter  company, 
and  the  pro^rty  of  the  former  was  thereafter  conveyed  to  the  lat- 
ter corporation  for  and  in  consideration  of  such  stock,  and  for  no 
other  consideration.  At  the  time  of  the  resolution  and  convey- 
ance, the  defendant  Jonathan  Earle  was  president,  and  the  defend- 
ant George  B.  Earle  treasurer  of  both  corporations,  and  held  a 
majority  of  the  stock  of  the  Burlington  Cotton  Mills.  The  plain- 
tiff never  consented  nor  assented  to  the  resolution  to  sell,  nor  to 
the  acts  done  under  such  resolution. 

For  a  long  time  prior  to  January,  1875,  no  report  had  been  made 
to  the  stockholders  of  the  Burlington  Cotton  Mills,  nor  of  its  finan 
cial  affairs.  A  demand  was  made  upon  the  treasurer,  George  B. 
Earle,  that  he  furnish  such  report.  After  such  demand,  and  before 
January  9,  1875,  the  defendants  Earle  and  others  of  the  Vermont 
3orporation  were  a  majority  of  the  directors  of  the  New  York  com- 
pany. This  action  was  brought  by  the  plaintiff  as  a  stockholder  of 
the  Burlington  Cotton  Mills  (the  New  York  corporation),  holding 
100  out  of  1,000  shares  of  its  stock,  to  set  aside  the  conveyance 
aforesaid  as  illegal  and  void,  and  for  other  relief;  the  Burlington 
Cotton  Mills  having  refused  to  bring  the  action. 

E.  Sprout,  for  the  appellant. 

Isaac  L.  Miller^  for  the  respondents. 

BARNARD,  P.  J. : 

I  think  the  court  erred  in  dismissing  the  plaintiff's  complaint. 
He  was  a  stockholder  in  the  Burlington  Cotton  Mills,  a  Ne;v 
York  corporation. 

By  a  vote  of  a  large  majority  of  the  stockholders  (not  including 
plaintiff),  this  corporation  sold  all  its  property,  real  and  personal, 
except  cash  in  hand,  mills  and  franchises,  to  the  Burlington  Cotton 
Mill  Company,  a  Vermont  corporation,  and  took  in  payment  1,747 
shares  of  this  Vermont  corporation. 


TAYLOR  v.  EARLE.  3 


SECOND  DEPARTMENT,  JUNE  TERM,  1876. 


The  Burlington  Cotton  Mills,  on  plaintiff's  request,  refuse  to 
bring  this  action,  and  it  is  well  settled  that  in  such  a  case  a  stock- 
holder may  assert  his  own  rights,  making  the  corporation  a 
defendant. 

I  think  it  quite  clear  that  plaintiff  had  a  right  to  relief. 

Either  the  transfer  was  void  as  ultra  vires,  or  the  property 
received  in  some  way  was  liable  to  the  debts  of  the  Burlington 
Cotton  Mills,  and  after  their  payment  to  distribution  among  those 
of  the  stockholders  who  did  not  wish  to  take  a  proportion  of  stock 
in  the  Vermont  company. 

The  plaintiff  cannot  be  forced  to  take  the  stock  of  the  Burling- 
ton Cotton  Mill  Company  without  his  own  consent.  The  facts  are 
all  averred  in  his  complaint,  and  he  is  entitled  to  any  relief  war- 
ranted by  the  facts,  and  not  alone  to  that  for  which  he  has  asked. 

I  am  of  opinion,  however,  that  the  whole  scheme  of  the  transfer 
and  its  execution  was  illegal. 

There  is  no  power  given  by  the  acts  under  which  the  Burlington 
Cotton  Mills  were  incorporated  to  transfer  all  the  property  of  a  cor- 
poration, and  then  terminate  its  existence,  and  take  in  payment 
stock  in  a  company  carrying  on  the  same  business,  with  a  different 
name,  charter  and  stockholders,  and  being  a,  foreign  corporation. 

The  corporation,  by  the  New  York  law,  could  increase  or 
diminish  its  stock,  or  extend  its  business  to  other  objects,  but  that 
falls  far  short,  I  think,  of  the  sweeping  power  exercised  on  this 
occasion.  The  sale  was  not  real.  It  was  a  mere  form  to  turn  a 
New  York  corporation  into  a  Vermont  one,  and  thus  escape  the 
scrutiny  into  the  affairs  of  the  company  permitted  by  the  New 
York  law  to  the  stockholders. 

No  majority  can  bind  the  non-consenting  minority  to  this.  He 
became  a  stockholder  under  the  security  of  the  New  York  law, 
and,  when  that  is  taken  from  him,  at  least  he  should  have  the  prop- 
erty of  his  corporation  applied  to  the  payment  of  its  debts,  and 
the  surplus,  if  any,  divided  among  the  stockholders. 

I  think  the  judgment  should  be  reversed,  and  a  new  trial  granted, 
costs  to  abide  event. 

GILBBBT,  J.,  concurred  ;  DYKMAN,  J.,  not  sitting. 

Judgment  reversed,  and  new  trial  granted,  costs  to  abide  event 


STANTON  u.  KING. 


SECOND  DEPARTMENT,  JUNE  TERM,  1876. 


PHILIP  V.  R.  STANTON,  RESPONDENT,  v.  ELIZABETH  R.  B. 
KING,  FMPLEADED  WITH  JOHN  LEVERIDGE  AND  ANOTHIB, 
EXECUTORS  AND  TRUSTEES. 

Tnttt  estate —  service*  rendered  to — claim  for,  not  a  Uen—Cettui  qtw  tnut  —  n* 
necetsary  party  to  action  to  enforce. 

A  party  is  not  liable  for  any  portion  of  a  claim  for  services  rendered  to  a  trust 
estate,  by  reason  of  his  subsequent  receipt  of  a  portion  of  such  trust  estate 
under  the  provisions  of  the  will  creating  it,  and  is  not  a  necessary  party  to  an 
action  against  the  trustees  of  such  estate  to  recover  a  balance  of  a  claim  for 
such  services. 

In  what  case  a  trustee  may  make  a  claim  for  services  rendered  to  an  estate  a  liem 
upon  the  trust  estate,  considered. 

APPEAL  from  an  order  made  at  a  Special  Term  overruling  a 
demurrer  to  a  complaint.  The  demurrer  was  interposed  by  the 
defendant  Elizabeth  R.  B.  King,  on  the  grounds  of  defect  of 
parties,  pendency  of  another  action,  misjoinder  of  parties  and 
causes  of  action,  and  that  the  complaint  did  not  state  facts  suffi- 
cient to  constitute  a  cause  of  action.  The  action  was  brought 
to  recover  for  legal  professional  services  rendered  to,  and  moneys 
expended  for  an  estate.  The  trustees  under  the  will  and  the  cestm 
que  trusty  Elizabeth  R.  B.  King,  to  whom  a  portion  of  the  estate  had 
been  paid  over,  were  made  defendants ;  no  personal  claim  was  made 
against  either  of  the  defendants,  but  only  on  the  property  in  their 
hands,  derived  from  the  estate  for  which  the  services  were  ren- 
dered. 

James  C.  Kays,  for  the  appellant,  Elizabeth  R.  B.  King. 
P.  S.  Crooke,  for  the  respondent. 

BARNARD,  P.  J. : 

It  is  not  important  to  consider  the  question  whether  the  trusteei 
under  the  will  of  Gilbert  W.  Bowne  could  charge  the  estate  with 
the  claim  of  plaintiff  for  professional  services  rendered  the  estate. 

As  I  read  the  averments  of  the  complaint,  they  have  not  done 
BO.  The  averment  is  "  that  it  was  understood  by  said  defendants 


STANTON  v.  KING. 


SECOND  DEPARTMENT,  JUNE  TERM,  1876. 


John  Leveridge  and  Hermance  B.  Duryea,  trustees  as  aforesaid, 
and  this  plaintiff,  that  the  said  services  were  rendered  and  money 
paid  *  *  *  was  to  be  paid  for  by  them  as  such  trustees  out  of 
said  estate."  This  is  a  precise  statement  of  their  legal  duty  as 
trustees.  The  trustees  may  use  the  funds  of  the  estate  for  legal 
purposes.  They  cannot  bind  the  estate  by  any  executory  contract. 
(Austin  v.  Munro,  47  K  Y.,  360;  Ferrin  v.  Myrick,  41  N.  Y., 
315.)  There  is  no  cause  of  action  set  forth  against  the  defendant 
King. 

She  is  not  a  necessary  party  to  an  action  against  the  trustees  to 
recover  a  balance  of  a  claim  for  services  rendered,  nor  is  she  indi- 
vidually liable  to  plaintiff  for  any  portion  of  the  plaintiff's  claim 
by  reason  of  her  receipt  of  property  under  the  will  of  the  deceased, 
Gilbert  W.  Bowne. 

In  the  case  of  Noyes  v.  Blakeman  (2  Seld.,  567),  there  were  no 
funds  in  the  hands  of  the  trustees  to  resist  an  act-ion  which  threat- 
ened the  destruction  of  the  trust  estate.  In  such  an  exceptional 
case  the  Court  of  Appeals  held  that  the  trustees  could  establish  a 
lien  on  the  trust  estate.  Here  there  is  no  such  claim  made.  The 
services  rendered  were  in  the  management  of  the  estate,  and  it 
does  not  appear  but  that  the  trustees  had  always  sufficient  funds 
belonging  to  the  estate,  with  which  to  pay  plaintiff  for  his  services. 
Indeed,  the  contrary  appears,  that  the  trustees  had  abundant  means 
in  hand  down  to  the  time  the  estate  was  transferred  to  the  cestui 
que  trust  under  the  will. 

I  think  the  order  appealed  from  should  be  reversed  and  the 
demurrer  sustained,  with  leave  to  plaintiff  to  amend  in  twenty 
days  on  payment  of  costs. 

GILBERT,  J.,  concurred ;  DTKMAN,  J.,  not  sitting. 

Order  overruling  demurrer  reversed  with  costs  and  demurrer 
sustained  with  costs 


CAMPBELL  v.  SMITH. 


SECOND  DEPARTMENT,  JUNE  TERM,  1876. 


JOSEPH  W.  CAMPBELL,  APPELLANT,  v.  JAMES  K.  SMITH, 

RESPONDENT. 

Deed  —  assuming  mortgage  —  covenant  enures  to  benefit  of  mortgagee  —  Distinction 
between  such  covenant  when  made  by  grantee  and  mortgagee. 

H.  and  wife  executed  a  mortgage,  which  was  duly  assigned  to  C.  Afterward  H. 
and  wife  sold  the  premises  to  B.,  and  executed  a  deed  therefor  without  the  name 
of  any  grantee,  but  with  a  blank  space  left  for  the  insertion  thereof.  The  deed 
coctained  full  covenants  of  title,  and  a  clause  subsequent  to  the  "habeudum," 
in  the  following  words  (alter  enumerating  certain  other  mortgages):  "  Subject 
to  the  payment  of  another  certain  indenture  of  mortgage  now  upon  the  within 
described  premises,  amounting  to  $3,000"  (meaning  the  mortgage  in  ques- 
tion), "  which  said  mortgage  the  said  party  of  the  second  part  hereby  agrees 
to  assume,  pay  off  and  discharge,  the  same  having  been  allowed  out  of  the  con- 
sideration or  purchase  money  hereinbefore  expressed." 

B.  was  indebted  to  a  firm  of  which  defendant  8.  was  a  member,  and  afterward 
agreed  with  S.,  by  parol,  that  he  should  insert  the  name  of  S.  as  grantee  it:  the 
deed;  that  S.  should  take  the  title,  and  that  the  profits  therefrom  should  be 
applied  on  account  of  the  said  indebtedness  of  B.  to  the  defendant's  firm.  B. 
accordingly  inserted  the  defendant's  name  in  the  deed  and  had  the  same  recorded, 
with  his  knowledge  and  assent. 

Afterward  B.  procured  a  purchaser  for  the  premises,  and  contracted  in  his  own 
name  for  the  sale  thereof,  and  S.,  in  pursuance  thereof  aud  at  the  request  of  B., 
granted  and  conveyed  the  premises  to  such  purchaser,  in  fee  simple,  by  deed, 
with  the  usual  full  covenants,  including  covenant  of  seizin,  subject  to  the  said 
mortgage  and  other  incumbrances;  and  this  deed  contained  a  clause  similar  to 
the  other,  providing  for  the  assumption  and  payment  of  said  mortgage  by  such 
purchaser.  The  mortgage  was  foreclosed,  S.  not  being  made  a  party,  although 
his  grantee  was;  but  no  judgment  for  deficiency  was  demanded  against  him. 
C.  purchased  in  the  premises  on  the  sale,  and  brought  his  action  against  S.  on 
the  covenants  in  the  deed  from  H.  to  S.,  to  recover  the  deficiency  on  such  sale. 

Held,  that  8.,  as  regarded  H.,  was  the  absolute  owner  in  fee  of  the  premises,  and 
bound  to  pay  the  consideration  agreed  upon  for  the  purchase;  that  the  rights 
of  the  parties  were  not  to  be  determined  by  the  facts  existing  at  the  execution 
of  the  blank  deed,  but  by  those  existing  when  S.  consented  to  take  the  deed 
with  a  covenant  to  pay  the  plaintiffs  mortgage;  that  the  defendant,  by  the 
deed,  took  the  property  of  H.  and  agreed  to  pay  its  purchase-price  to  the  plaintiff. 

Lawrence  v.  Fox  (20  N.  Y.,  268)  followed;  Garnsey  v.  Rogers  (47  N.  Y.,  23c> 
distinguished. 

APPEAL  from  a  judgment  entered  in  favor  of  the  defendant,  on 
the  decision  by  the  court,  a  jury  trial  having  been  waived. 

On  the  29rh  of  April,  1871,  Maria  C.  Hood  and  John  M.  Hood 


CAMPBELL  v.  SMITH. 


SECOND  DEPARTMENT,  JUNE  TERM,  1876. 


her  husband,  duly  executed,  acknowledged  and  delivered  to  Edwin 
E.  Dillingham  a  bond  and  mortgage  on  the  separate  property  of 
said  Maria  C.  Hood,  who  was  the  owner  thereof  in  fee  simple, 
which  bond  and  mortgage  were  duly  assigned  to  the  plaintiff 
September  16,  1871,  and  such  assignment  recorded  October  20th, 

1871,  on  which  there  is  due  and  unpaid  $3,000  and  interest  from 
September  3d,  1874. 

A  short  time  prior  to  June  25th,  1872,  said  Maria  C.  Hood  and 
John  M.  Hood  agreed  with  one  N.  "W.  Burtis  to  sell  to  him  the 
said  premises,  subject  to  the  incumbrances  upon  it,  for  $2,000,  in 
the  notes  of  said  Burtis,  and  that  said  mortgage,  then  a  lien  thereon, 
together  with  other  incumbrances,  should  be  assumed. 

The  said  Maria  C.  and  John  M.  Hood,  on  the  25th  day  of  June, 

1872,  duly  executed,  acknowledged  and  delivered  to  said  Burtis  a 
deed  of  said  premises,  without  the  name  of  any  grantee  (i.  e.,  party 
of  the  second  part  thereto)  therein,  but  with  a  blank  space  left  for 
the  insertion  thereof;  said  deed  then  contained  full  covenants  for 
title  and  a  clause,  subsequent  to  the  " hdbendum"  in  the  following 
words  (after  enumerating  certain   other  mortgages):  "Subject  to 
the  payment  of  another  certain  indenture  of  mortgage,  now  upon 
the  within  described  premises,  amounting  to  $3,000"  (meaning 
the  mortgage  in  question),  "  which  said  mortgage  the  said  party  of 
the  second  part  hereto  agrees  to  assume,  pay  off  and  discharge,  the 
game  having  been   allowed  out  of  the  consideration  or  purchase 
money  hereinbefore  expressed." 

Burtis  then  paid  the  grantors  in  said  deed  $2,000  in  his,  Burtis', 
notes,  and  they,  by  parol,  authorized  said  Burtis  to  fill  into  the 
blank  left  therefor  in  said  deed  the  name  of  any  person  he  chos« 
as  grantee,  and  to  deliver  the  same  to  such  grantee. 

Burtis  was  then  indebted  to  a  firm,  of  which  the  defendant  wat 
a  member,  and  shortly  thereafter  agreed  with  said  defendant,  by 
parol,  that  he,  said  Burtis,  should  insert  the  defendant's  name  as 
grantee  in  the  said  deed,  and  that  the  defendant  should  take  the 
title,  and  that  the  profits  therefrom  should  be  applied  on  account 
of  the  said  indebtedness  to  the  defendant's  firm ;  and  thereupon 
said  Burtifl,  in  pursuance  of  his  said  authority  and  said  agreement, 
inserted  the  name  of  the  defendant  as  grantee  in  said  deed,  and  had 
the  same  recorded  with  the  knowledge  and  aasont  of  said  defendant^ 


8  CAMPBELL  v.  SMITH. 

SECOND  DEPARTMENT,  JUNE  TERM,  1876. 

Thereafter  said  Burtis  procured  a  purchaser  for  said  property 
and  in  his  own  name  contracted  for  the  sale  thereof,  and  the 
defendant,  in  pursuance  thereof  and  at  the  request  of  said  Burtis, 
granted  and  conveyed  the  same  to  such  purchaser  in  fee  simple,  by 
deed,  with  the  usual  full  covenants,  including  covenant  of  seizin, 
subject  to  the  said  mortgage  and  other  incumbrances ;  and  the 
deed  contained  a  clause,  similar  to  that  quoted  above,  providing  for 
the  assumption  and  payment  of  said  mortgage  by  such  purchaser. 

The  plaintiff  subsequently  foreclosed  said  mortgage  without 
making  said  defendant  a  party  thereto,  and  the  amount  above  found 
due  is  the  amount  due  thereon  after  deducting  the  amount  realized 
thereon  from  the  sale  under  the  judgment  in  said  action.  The 
grantee  of  the  defendant  was  made  a  party  to  said  action,  but  no 
judgment  for  deficiency  was  demanded  or  taken  against  him. 

The  plaintiff  purchased  the  premises  at  the  foreclosure  sale,  and 
upon  the  trial  of  this  case  offered,  upon  being  made  whole,  to 
convey  the  same  to  the  defendant. 

R.  <&  6.  Ingraham,  for  the  appellant. 
D.  P.  Barnard,  for  the  respondent. 

BABNARD,  P.  J. : 

I  do  not  think  this  case  falls  within  the  principle  established  in 
Garnsey  v.  Rogers  (47  N.  T.,  233).  In  that  case  no  title  passed 
to  the  defendant.  The  deed  in  which  his  covenant  to  pay  incum- 
brances was  contained,  was,  as  between  the  parties  to  it,  a  mort- 
gage only.  The  court  held  that  a  covenant  by  a  mortgagee  with 
the  mortgagor  to  pay  a  prior  mortgage  was  a  promise  for  the 
benefit  of  the  mortgagor  only,  and  could  not  be  made  the  basis  of 
an  action  by  the  prior  mortgagee.  In  this  case  Burtis  agreed  with 
the  Hoods  to  pay  a  prior  mortgage  (the  one  held  by  plaintiff)  as 
part  of  the  purchase  money.  They  had  signed  the  bond  and 
mortgage,  and  were  personally  liable  upon  it.  They  gave  Burtis 
an  absolute  deed  in  blank,  with  leave  to  fill  in  the  name  of  any 
grantee.  He  filled  in  defendant's  name  as  grantee  with  his  assent. 

The  defendant  as  against  the  Hoods  became  the  absolute  owner 
in  fee  of  the  lands.  As  to  them  he  is  bound  to  pay  the  considera 


MURDOCK  v.  WARD. 


SECOND  DEPARTMENT,  JUNE  TERM,  1876. 


tion  agreed  upon  for  the  purchase.     The  rights  of  the  parties  are 
not  to  be  determined  by  the  facts  existing  at  the  execution  of  the 
blank  deed,  but  by  those  existing  when  defendant  consented  to  take 
the  deed  with  a  covenant  to  pay  the  plaintiff's  mortgage.     By  that 
deed  defendant  took  Hood's  property  and  agreed  to  pay  its  purchase- 
price  to  plaintiff.     The  case  thus  comes,  I  think,  within  the  prinoi 
pie  of  Lawrence  v.  Fox  (20  N.  Y.,  268). 
I  think  there  should  be  a  new  trial,  costs  to  abide  event 

GILBERT,  J.,  concurred. 

Present  —  BARNARD,  P.  J.,  GILBERT  and  DYKMAN,  JJ. 

Judgment  reversed  and  new  trial  granted,  costs  to  abide  event. 


WILLIAM    C.    MURDOCK,    EXECUTOR,    ETC.,  v.  HARRIET 
ISABEL  WARD  AND  ISABEL  GODFREY  WARD. 

Win  — providing  for  EQUAL  division  among  next  of  kin,  as  in  ease  of  intestacy  —  con- 
struction of —  as  to  rights  of  widow  and  child. 

A.  testator  empowered  his  executors  to  pay  to  his  sons,  after  their  arrival 
at  the  age  of  twenty-one  years,  the  whole  or  part  of  their  portion  of  his  estate  as 
they  should  deem  prudent.  The  will  also  provided,  "  and  in  case  the  whole  of 
said  principal  shall  not  be  paid  to  them  or  either  of  them  during  their  lives,  then 
the  said  principal,  or  such  part  or  portion  thereof  as  may  remain  unpaid,  to  be 
equally  divided  among,  and  paid  to  the  persons  entitled  thereto,  as  their  or  eithei 
of  their  next  of  kin,  according  to  the  laws  of  the  State  of  New  York,  and  as 
if  the  same  were  personal  property,  and  they  or  either  of  them  had  died  intes 
tate."  A  son  of  the  testator  died  before  he  had  received  his  share,  there  being 
some  $67,000  thereof  in  the  hands  of  the  executor  at  the  date  of  his  death, 
leaving  a  widow  and  one  child,  an  infant. 

Seld,  that  the  words  "  equally  divided  "  among  the  persons  entitled  thereto,  were 
restricted  by  the  last  part  of  the  clause  "  and  as  if  the  same  were  personal 
property,  and  they  or  either  of  them  had  died  intestate."  The  direction  was  to 
distribute  the  property  equally  in  the  manner  provided  by  law,  as  in  case  of 
intestacy,  but  as  the  law  does  not  distribute  equally  between  a  widow  and 
child,  no  other  mode  of  distribution  but  the  one  established  by  statute  as  tc 
personal  property  hi  case  of  intestacy  was  furnished,  and  it  should  be  followed 
and  the  widow  take  one-third  and  the  child  two-thirds. 
HUN— VOL.  VIII  2 


10  MURDOCK  v.  WARD. 

SECOND  DEPARTMENT,  JUNE  TERM,  1876. 

APPEAL  by  Isabel  Godfrey  Ward,  an  infant,  from  a  judgment 
entered  on  the  decision  of  the  Special  Term,  allowing  to  the 
widow,  Harriet  Isabel  Ward,  one-half  of  a  fund  not  paid  over  to 
her  deceased  father  under  the  will  of  her  grandfather,  James  O. 
Ward. 

This  action  was  brought  by  the  plaintiff  as  executor  and  trustee 
under  the  will  of  James  O.  Ward  for  a  construction  of  the  fourth 
clause  thereof,  viz. :  "  Fourthly.  To  pay  the  rest,  residue  and  remain- 
der of  my  estate  to  all  my  children  in  equal  shares  as  follows,  that  is 
to  say  :  To  my  sons  at  such  time  or  times  after  they  shall  severally 
arrive  at  the  age  of  twenty-one  years  as  my  said  executors  shall 
deem  prudent  and  advisable  ;  and  in  case  my  said  executors  shall 
not  deem  it  prudent  or  advisable  to  pay  to  my  said  sons,  or  either 
of  them,  their  shares  as  they  shall  severally  arrive  at  the  age  of 
twenty-one  years,  then  to  pay  to  them,  or  either  of  them,  the 
income  thereof,  or  such  part  or  portion  of  the  principal  as  they 
shall  from  time  to  time  deem  prudent  aud  best ;  and  in  case  the 
whole  of  said  principal  should  not  be  paid  to  them,  or  either  of 
them,  during  their  lives,  then  the  said  principal,  or  such  part  or 
portion  thereof  as  may  remain  unpaid,  to  be  equally  divided  among 
and  paid  to  the  persons  entitled  thereto,  as  their  or  either  of  their 
next  or  kin,  according  to  the  laws  of  the  State  of  New  York,  and 
as  if  the  same  were  personal  property,  and  they  or  either  of  them 
had  died  intestate." 

It  appears  from  the  findings  of  fact  that  Charles  F.  Ward,  a  son 
of  James  O.  Ward,  died  August  23,  1875,  and  that  at  that  time 
said  plaintiff,  as  executor  and  trustee,  had  in  his  hands  about  the 
sum  of  $67,000,  which  was  the  residue  of  the  share  of  said  son, 
Charles  F.,  not  paid  over  to  him  in  his  lifetime ;  that  said  son  left 
him  surviving  the  defendants,  his  widow  Harriet  Isabel  Ward  and 
his  infant  daughter  Isabel  Godfrey  Ward,  aged  about  eighteen 
months. 

The  court  on  the  trial  found,  as  a  conclusion  of  law,  that  the 
defendants,  the  widow  and  child,  were  each  entitled  to  one-half  of 
said  fund,  and  directed  judgment  accordingly.  Judgment  was,  on 
the  17th  of  April,  1876,  entered  in  accordance  with  said  find- 
ings. From  that  judgment  the  infant  defendant,  Isabel  Godfrey 
Ward,  through  C.  D.  Newman,  Esq.,  her  guardian  ad 


MURDOCH  u.  WARD.  1J 

SECOND  DEPARTMENT,  JUNE  TERM,  1876. 

appealed  to  this  court.     Exceptions  were  filed  to  the  conclusions 
of  law  only. 

Clement  D.  Newman,  for  the  infant  appellant,  Isabel  Godfrey 
Ward.  I.  Next  of  kin  used  simpliciter  does  not  include  the 
widow.  To  sustain  the  decision  of  the  court  below  it  must  clearly 
appear  from  the  context  or  other  parts  of  will  that  the  words  next 
of  kin  were  used  with  other  import  than  their  strict  legal  defini- 
tion. This  fund  must  be  "equally  divided  *  *  *  accord- 
ing to  the  laws  of  New  York."  The  testator  had  in  mind  persons 
who  take  equally  by  and  according  to  law,  not  a  widow,  who, 
according  to  law,  takes  one-third.  If  there  were  no  widow  the 
daughter  would  take  the  whole  as  next  of  kin.  This  is  clear. 
Suppose  there  were  no  daughter  would  the  widow  take  the  whole  ? 
If  the  testator  meant  to  include  widow  in  the  words  next  of  kin, 
the  widow  as  devisee  in  remainder  would  have  just  as  clear  a  right 
as  the  child  to  the  whole.  The  persons  the  testator  had  in  mind 
as  next  of  kin  are  clearly  shown  by  the  contingent  remainder 
clause,  viz. :  "  In  case  either  of  rny  children  should  die  with- 
out issue  him  or  her  surviving,  I  then  order  and  direct  that 
his  or  her  share  be  paid  to  the  surviving  brothers  and  sisters." 
Here  must  come  in  another  forced  construction.  "  Without  issue  " 
in  this  will  ought  to  mean  without  widow  and  children,  and  we 
must  imagine  the  testator's  idea  to  have  been :  "  If  any  son  of 
mine  leaves  issue  their  mother  or  step-mother  is  his  next  of  kin.  Ii 
he  leave  no  issue  she  is  not  next  of  kin.  Perhaps  I  do  and  per 
haps  I  don't  designate  her  as  a  devisee.  If  the  son  leaves  a  child 
she  shall  have  half  its  inheritance."  II.  Next  of  kin  used  simplicitei 
means  kindred  or  relation  by  blood.  (Slosson  v.  Lynch,  28  How., 
417.)  "  A  bequest  by  husband  or  wife  to  next  of  kin  does  not 
include  the  wife  or  husband,  and  the  same  rule  applies  to  bequest 
under  a  power,  and  where  a  will  provides  that  next  of  kin  shall 
take,  as  in  cases  of  intestacy."  (Redtield  on  Wills,  vol.  2,  p.  77 ; 
Watt  v.  Watt,  3  Ves.,  244.)  Widow  does  not  take  where  hus- 
band's will  directs  his  personal  estate  "  to  be  divided  among  his 
next  of  kin,  as  if  he  had  died  intestate."  (Garrick  v.  Camden,  14 
Ves.,  372.)  Where  a  will  reads  "  to  next  of  kin  according  to  the 
statutes  for  the  distribution  of  personal  estates  of  persons  dying 


MUKDOCK  v.  WARD. 


SECOND  DEPARTMENT,  JUNE  TERM,  1876. 


intestate,"  the  widow  does  not  take.  (Cholmondely  v.  Ashburton,  6 
Beav.,  86  ;  Withy  v.  Mangles,  4  id.,  358.)  The  English  statute  is 
the  same  as  ours.  The  act  of  1849  (p.  387)  gave  certain  damages 
to  the  wile  and  next  of  kin  of  deceased  person,  and  a  husband  suing 
for  death  of  wife  was  held  not  to  be  next  of  kin.  (See  Dickens  v. 
N.  Y.  C.  R.  E.  Co.,  23  N.  Y.,  158.) 

Milton  A.  Fowler,  for  the  respondent,  Harriet  Isabel  Ward. 
I.  The  term  next  of  kin  has  not  an  inflexible  meaning,  but  is  con- 
strued according  to  the  circumstances  under  which  it  is  used,  and 
so  as  to  best  carry  out  the  intention  of  the  person  using  it.  Under 
the  statute  which  provides  that  a  creditor  of  a  deceased  party  who 
may  have  neglected  to  present  his  claim  to  the  executor  or  adminis- 
trator may  recover  the  same  of  the  next  of  kin  of  the  deceased,  to 
whom  any  assets  may  have  been  paid  or  distributed,  it  has  been 
held  that  such  recovery  may  be  had  of  the  widow  as  next  of  kin. 
(The  Merchants'  Ins.  Co.  v.  Hinman,  15  How.  Pr.  Rep.,  182.) 
Again,  it  has  been  held  that  the  husband  succeeds  to  the  wife's 
personal  estate  as  her  next  of  kin,  although  he  is  not  strictly  such. 
(Fittiplace  v.  Georges,  1  Ves.  Jr.,  46—48  ;  Schuyler  v.  Hoyle,  5  J. 
Ch.,  196-206  ;  2  Kent  Com.,  p.  136.)  The  court,  MILLER,  J.,  giv- 
ing the  opinion  in  the  case  of  Knickerbacker  v.  Seymour,  says  :  "  I 
think  it  must  be  conceded  that  the  expression  '  next  of  kin  '  may 
be  employed  in  a  deed  or  will  conveying  or  bequeathing  property, 
so  as  to  authorize  a  construction  which  will  include  the  wife  or 
widow."  (Knickerlacker  v.  Seymour,  46  Barb.,  198-205.)  II.  What- 
ever doubt  there  may  be  as  to  whether  a  bequest  to  the  next  of  kin 
of  a  party  includes  his  wife,  such  doubt  is  entirely  removed  by  the 
words  used  in  this  will  :  "  To  the  persons  entitled  thereto  as  their 
next  of  kin,  according  to  the  laws  of  the  State  of  New  York,  and 
as  if  the  same  were  personal  property,  and  they  or  either  of  them 
had  died  intestate."  This  clause  of  the  will  explains  next  of  kin, 
as  meaning  such  persons  as  would  take  as  distributees,  under  the 
laws  of  the  State,  in  cases  of  intestacy.  1.  No  laws  of  the  State 
can  be  referred  to  except  the  statutes  as  to  the  distribution  of  per- 
sonal property,  found  in  2  Rev.  Stat.,  at  p.  96,  §  75.  2.  If  a  strict 
and  liberal  meaning  is  attempted  to  be  given  to  the  words  "next 
of  kin  "  in  that  statute,  such  an  would  exclude  the 


MURDOCK  v.  WARD.  13 

SECOND  DEPARTMENT,  JUNE  TERM,  1876. 

child  as  well  as  the  widow,  for  the  distribution  is  "to  the  widow, 
children,  or  next  of  kin,  in  manner  following."  No  one  would  say 
that  such  would  be  a  fair  construction  of  the  words,  nor  can  it  be 
argued  any  more  fairly  that  the  wife  is  excluded.  3.  The  widow 
is  a  distributee  under  the  statutes  of  this  State,  and  as  such  is  one 
of  the  persons  referred  to  in  the  clause  of  the  will  above  quoted. 
(2  Redfield  on  Wills,  p.  400,  §  47,  sub.  14.)  In  a  case  having  a 
trust  similar  to  this,  the  words  of  after-distribution,  being  "  to  the 
heirs  at  law  and  next  of  kin  of  said  party  of  the  first  part  in  the 
manner  and  proportions  prescribed  by  the  statutes  of  descent  and 
distribution  of  this  State,  in  case  of  persons  who  die  intestate,"  the 
court  says :  "  The  expression  '  in  cases  of  persons  who  die  intestate ' 
qualifies  the  previous  language  so  as  to  indicate  that  it  was  intended 
to  embrace  the  widow  within  the  words  employed."  (Knicker- 
lacker  v  Seymour,  46  Barb.,  198-207.) 

BABNAJSD,  P.  J. : 

James  C.  Ward,  by  his  will,  empowered  his  executors  to  pay  to 
his  sons,  after  their  arrival  at  the  age  of  twenty-one  years,  the 
whole  or  part  of  their  portion  of  his  estate  as  they  should  deem 
prudent.  Charles  F.  Ward,  a  son  of  testator,  died  before  he  had 
received  his  share,  there  being  about  $67,000  thereof  in  the  execu- 
tors' hands  at  the  date  of  his  death.  He  left  a  widow  and  one 
child,  an  infant. 

The  will  provided  for  distribution  in  case  of  death  of  the  son  as 
follows :  "  And  in  case  the  whole  of  said  principal  shall  not  be  paid 
to  them,  or  either  of  them,  during  their  lives,  then  the  said  princi- 
pal, or  such  part  or  portion  thereof  as  may  remain  unpaid,  to  be 
equally  divided  among  and  paid  to  the  persons  entitled  thereto,  as 
their  or  either  of  their  next  of  kin,  according  to  the  laws  of  the 
State  of  New  York,  and  as  if  the  same  were  personal  property,  and 
they  or  either  of  them  had  died  intestate."  The  clause  above  given 
suggests  three  constructions : 

1.  That  the  widow  and  child  take  equally. 

2.  That  the  widow  is  not  next  of  kin,  and  the  child  takes  all. 

3.  That  the  widow  takes  one-third  and  the  child  two-thirds,  as  if 
the  son  had  owned  the  property  and  had  died  intestate. 

I  think  the  last  the  true  construction  of  the  clause  in  question 


14  KUNTfc  v.  LIGHT. 


SECOND  DEPARTMENT,  JUNE  TERM,  1876. 


The  words  "equally  divided"  among  the  persons  entitled  thereto 
are  restricted  by  the  last  part  of  the  clause,  "  and  as  if  the  same  were 
personal  property,  and  they  or  either  of  them  had  died  intestate." 
In  other  words,  the  direction  is  to  distribute  the  property  equally 
in  the  manner  provided  by  law  as  in  case  of  intestacy.  The  law 
does  not  distribute  equally  between  a  widow  and  child.  No  other 
mode  of  distribution  but  the  one  established  by  statute  as  to  per- 
sonal property  in  case  of  intestacy  is  furnished,  and  that  should  be 
followed. 

Decree  modified  accordingly. 

GILBERT,  J.,  concurred.     DYKMAN,  J.,  not  sitting. 

Judgment  modified  by  giving  widow  one-third  and  child  two- 
thirds  of  fund. 


JOHN    G.   KUNTZ,    APPELLANT,    v.    FREDERICK    LIGHT, 

RESPONDENT. 

Appeal  to  County  Court  —  wTien  security  on,  jurisdictional — Code,  %§  852-355 — 
chap.  392  of  1868  —  appealable  order. 

On  appeal  from  a  Justice's  Court,  before  the  act  of  1863  (chap.  392,)  security  was 
only  required  when  a  stay  of  execution  was  desired;  since  that  act,  where,  by 
the  terms  of  section  352,  the  appellant  is  entitled  to  a  new  trial,  security  ifl 
required  to  perfect  such  appeal,  and  give  jurisdiction  thereon  to  the  County 
Court 

A  refusal  to  dismiss  such  appeal  when  security  has  not  been  filed  affects  a  sub- 
stantial right,  and  the  order  refusing  it  is  appealable. 

Seymour  v.  Judd  (2  N.  Y.,  464)  followed. 

APPEAL  from  an  order  of  the  County  Court  of  Queens  county, 
refusing  to  dismiss  an  appeal  thereto  from  a  Justice's  Court. 

The  action  was  tried  in  a  Justice's  Court  of  Newtown,  Queens 
Bounty,  on  the  22d  of  October,  1875,  and  judgment  rendered  in 
favor  of  the  plaintiff  for  the  sum  of  fifty-two  dollars  and  sixty-two 
cents  damages,  and  four  dollars  costs. 

The  defendant  thereupon  served  a  notice  of  appeal  for  a  new  trial 
in  the  County  Conrt,  as  a  matter  of  right,  the  plaintiff  having  claimed 


KUNTZ  v.  LIGHT.  15 


SECOND  DEPARTMENT,  JUNE  TERM,  1876. 


more  than  fifty  dollars  in  his  complaint.  The  defendant  did  not,  al 
the  time  he  served  his  notice  of  appeal,  nor  at  any  subsequent  time, 
give  an  undertaking  on  appeal,  as  is  required  in  the  case  of  a  new 
trial  by  the  Code  (§  355). 

The  plaintiff  presented  the  affidavit  of  WILLIAM  E.  SLOCUM,  Esq., 
the  justice  before  whom  the  cause  was  tried,  and  the  certificate  of 
the  county  clerk,  proving  that  no  undertaking  had  been  served  or 
iiled,  and  moved  to  dismiss  the  appeal.  The  motion  was  heard 
before  Hon.  JOHN  J.  ARMSTRONG,  county  judge  of  Queens  county,  on 
the  1st  day  of  February,  1876,  and  was  denied,  with  costs,  and  an 
order  entered  to  that  effect,  from  which  order  the  plaintiff  appealed 
to  the  General  Term. 

John  E.  Van  Nostrand,  for  the  appellant 
D.  L.  Norton,  for  the  respondent. 

BARNARD,  P.  J. : 
The  question  presented  arises  under  section  355  of  the  Code, 

which  reads  as  follows  : 

"  "When,  by  the  terms  of  section  352,  the  appellant  is  entitled 
to  a  new  trial  in  the  appellate  court,  he  shall,  at  the  time  of  taking 
his  appeal,  and  in  all  other  cases,  if  he  desires  a  stay  of  execution  of 
the  judgment,  give  security,  as  provided  in  the  next  section." 

The  judgment  exceeded  fifty  dollars  exclusive  of  costs,  and  by 
the  terms  of  section  352  a  new  trial  resulted,  as  matter  of  right, 
in  the  appellate  court.  I  think  the  county  judge  erred  in  his  con- 
struction of  the  section  in  question.  The  clause  giving  a  new  trial 
in  cases  where  the  pleadings  demanded  a  judgment  upon  a  claim 
oi  over  fifty  dollar?  was  passed  in  1863. 

The  statute  in  reference  to  security  upon  appeals  from  Justices' 
Courts  before  that  required  such  security  only  in  case  a  stay  of  exe- 
cution was  desired. 

When  the  legislature  passed  the  provision  giving  a  new  trial 
npon  appeals  where  the  amount  demanded  was  over  fifty  dollars, 
there  was  added  the  provision  that  on  such  appeals  "  and  in  all 
other  cases  if  he  desires  a  stay  of  execution,"  the  appellant  should 
give  security. 


BEUTHOLF  v.  O'REILLY. 


SECOND  DEPARTMENT,  JUNE  TERM,  1876. 


If  there  was  to  be  no  security  given  upon  such  appeals  there  was 
no  necessity  for  the  added  clause.  The  old  requirement  as  to  secu- 
rity was  sufficient.  No  security  was  needed  except  when  a  stay  of 
execution  was  desired. 

The  order  is  appealable.  If  security  was  required  to  perfect 
the  appeal  the  County  Court  obtained  no  jurisdiction  without  it 
The  refusal  to  dismiss  the  appeal  affected  a  substantial  right  and 
the  order  refusing  it  is  appealable.  (Seymour  v.  Judd,  2  N. 
Y.,  464.) 

Order  reversed  with  costs  and  appeal  dismissed,  with  costs. 

GILBERT,  J.,  concurred. 

Present  —  BARNARD,  P.  J.,  GILBERT  and  DYKMAN,  JJ. 

Order  of  County  Court  reversed,  with  ten  dollars  costs  and  dis- 
bursements, and  motion  granted  to  dismiss  the  appeal. 


SAMUEL   BERTHOLF,  RESPONDENT,  v.   JAMES   O'REILLY 
AKD  HERMAN  FIRNHABER,  APPELLANTS. 

Oivtt  damage  act  —  chap.  646  of  1873  —  action  under  —  constitutional  as  to  owner  of 
premises —  Contributory  negligence  —  Intoxication  occurring  while  violating  Sunday 
law,  no  defense— 2  Rev.  Stat.  (Qth  ed.),  928,  §  84. 

R.  was  the  owner  and  F.  the  keeper  of  a  place  where  intoxicating  liquors  were 
sold  without  a  license.  The  son  of  the  plaintiff,  on  a  Sunday,  took  plaintiff 's 
horse,  saying  he  was  going  to  see  a  friend  about  four  miles  distant,  but  instead 
went  directly  to  the  place  of  P.,  and  became  intoxicated  there,  and,  when  in 
such  a  state,  drove  the  horse  so  violently  that  he  died.  This  action  was 
brought,  under  chapter  646  of  the  Laws  of  1873,  to  recover  the  value  of  the 
horse. 

Held,  that  the  action  could  be  maintained  against  R,  the  landlord,  jointly  with 
P.,  the  tenant. 

That  the  plaintiff's  allowing  his  son  to  take  his  horse  to  drive  to  a  neighbor's, 
knowing  the  son  to  be  of  intemperate  habits,  was  not  such  contributory  negli 
gence  as  to  defeat  his  right  of  action. 

Fhat  the  question  of  contributory  negligence  was  not  applicable  to  the  case. 

rhat  the  sending  of  the  horse  on  Sunday  did  not  deprive  the  plaintiff  of  h€ 
right  to  sue  lor  his  property  unlawfully  destroyed. 


BEKTHOLF  v.  O'REILLY.  17 

SECOND  DEPARTMENT,  JUNE  TEBM,  1876. 

APPEAL  from  an  order  denying  a  motion  for  a  new  trial,  made 
upon  the  minutes  of  the  judge  at  the  Circuit. 

The  action  was  brought  under  chapter  64:6,  Laws  of  1873,  to 
recover  damages  alleged  to  have  been  sustained  by  the  plaintiff,  as 
the  owner  of  a  horse  of  the  value  of  $200,  which  was  taken  from 
his  place,  in  Orange  county,  in  good  condition,  on  a  Sunday,  by 
his  son,  and  returned  after  midnight,  so  used  up  that  death  resulted 
therefrom.  The  son  became  intoxicated  from  liquor  obtained 
of  the  defendant  Firnhaber,  the  keeper  of  a  restaurant,  of  which  the 
defendant  O'Reilly  was  the  landlord,  and  in  this  condition  drove  the 
horse  so  furiously  as  to  cause  the  injury  complained  of.  The  son, 
who  was  known  to  be  of  intemperate  habits,  borrowed  the  horse  to 
go  to  a  neighbor's,  but  instead  went  to  Firnhaber's. 

Lewis  E.  Carr,  for  the  appellants. 
W.  J.  Gross,  for  the  respondent. 

BARNARD,  P.  J. : 

This  is  an  action  for  damages  under  chapter  646  of  Laws  of 
1873.  It  is  brought  against  the  owner  of  premises  leased  for  the 
purpose  of  selling  intoxicating  liquors,  and  against  the  tenant  who 
hired  the  premises  for  that  purpose.  The  sale  in  question  was 
made  to  plaintiffs  son,  who,  by  reason  of  the  intoxication  produced 
thereby,  did  "  drive,  worry,  and  maltreat "  plaintiff's  horse  causing 
his  death.  The  evidence  is  sufficient  to  sustain  the  verdict  as  to 
the  fact  of  selling,  and  as  to  the  consequent  intoxication  and  its 
results.  It  was  conflicting,  but  the  jury  have  found  the  facts  to 
have  been  as  alleged  in  plaintiff's  complaint.  As  to  the  tenant,  the 
act  has  been  held  constitutional.  (Baker  v.  Pope,  5  N.  Y.  S.  0., 
102.)  The  act  in  question  gives  the  action  against  the  owner  ot 
the  premises  where  the  sale  is  made,  severally  or  jointly  with  the 
person  selling,  where  the  owners  have  knowledge  that  intoxicating 
liquors  are  to  be  sold  thereon. 

In  this  case  the  owner  leased  the  premises  for  the  purpose  of 

selling  lager  beer  and  ale.     He  knew  that  the  tenant  was  selling 

intoxicating  liquors  after  he  took  possession.     The  tenant  swears 

that  the  owner  agreed,  as  part  of  the  lease,  to  obtain  a  license  for 

HUN— VOL.  VIII.         3 


18  BERTHOLF  v.  O'REILLY. 

SECOND  DEPARTMENT,  JUNE  TERM,  1876, 

him.  In  fact  no  license  was  obtained.  I  can  discover  no  reason 
why  the  act  is  invalid  as  to  the  owner  of  the  premises.  The  object 
of  the  law  was  to  prevent  the  impoverishment  of  families  by  reason 
of  intoxication;  to  prevent  the  violence  and  injury  resulting  from 
intoxication  by  making  those  who  caused  the  intoxication  liable  for 
the  damages  which  resulted  to  others  by  reason  thereof.  The  tenant 
may  sell,  but  he  must  be  careful  to  whom  he  sells,  and  never  to  sell 
enough  to  cause  intoxication,  or  to  add  to  an  intoxication  which 
has  been  commenced  by  sales  of  strong  drink  by  others.  The  land- 
lord must  see  that  he  rents  his  premises,  if  he  rents  them  for  the 
purpose  of  selling  intoxicating  drinks,  to  persons  who  will  so  sell 
that  no  person  shall  be  injured  in  person,  property  or  means  of 
support  by  reason  of  his  sales.  The  legislature  required  the  owner, 
who  alone  has  the  power  to  lease  and  select  his  tenant,  to  assume 
the  risk  of  his  tenant's  acts  in  the  business  of  selling  spirituous 
liquors  when  such  tenant  caused  injury  by  his  sales.  If  the  legisla- 
ture can  legislate  against  the  tenant,  ita  power  to  reach  the  land- 
lord cannot  be  doubted  in  the  cases  mentioned  in  the  act  referred  to. 

I  do  not  think  the  principle  of  contributory  negligence  applica- 
ble to  this  action.  The  plaintiff's  son  was  made  intoxicated  by 
defendants,  and  ran  his  father's  horse  to  death.  The  action  was 
not  for  negligently  killing  the  horse ;  if  it  were,  sending  his  son 
with  the  horse  to  go  and  see  a  neighbor,  knowing  that  his  son  fre- 
quently got  drunk,  would  not  bring  the  case  within  that  principle 
because  his  son  did  get  drunk  on  the  occasion.  The  sending  the 
horse  on  Sunday  does  not  deprive  the  plaintiff  of  his  right  to  sue 
for  his  property  unlawfully  destroyed.  (Nodine  v.  Doherty,  46 
Barb.,  59.) 

The  judgment  should  be  affirmed  with  costs. 

GILBERT,  J.,  concurred.     DYKMAN,  J.,  not  sitting. 
Judgment  and  order  denying  new  trial  affirmed  with  costs. 


TISDALE  v.  MOORE.  19 

SECOND  DEPARTMENT,  JUNE  TEKM,  1876. 

JAMES  TISDALE,  APPELLANT,  v.  MATILDA  MOORE, 
BENJAMIN  F.  MOORE,  JOSEPH  G.  MOORE,  BEN- 
JAMIN F.  MOORE,  JR.,  AND  OTHERS,  RESPONDENTS. 

Demurrer — Miyoinder  of  causes  of  action  —  what  is  not. 

In  an  action  to  foreclose  a  mechanic's  lien,  although  other  persons  than  the  one 
against  whom  the  claim  was  filed  as  owner  of  the  premises  are  made  parties 
defendant,  on  the  ground  that  conveyances  by  and  to  them,  of  the  premises, 
-were  fraudulently  made  to  defeat  plaintiff's  claim,  and  the  complaint  asks  to  have 
such  conveyances  declared  void,  yet  there  is  only  one  cause  of  action  set  forth 
in  the  complaint  and  the  same  is  not  demurrable. 

Even  if  the  prayer  for  judgment  upon  the  facts  alleged  be  for  too  much,  it  is  not 
ground  for  demurrer. 

APPEAL  from  a  judgment  and  order  sustaining  a  demurrer  to  a 
complaint,  on  the  ground  of  a  misjoinder  of  two  causes  of  action. 

The  complaint  sets  forth  that  the  plaintiff  performed  labor  and 
furnished  materials  for  certain  houses  on  the  land  of  the  defendant 
Matilda  Moore,  and  that  he  filed  and  served  on  the  16th  Novem- 
oer,  1875,  the  notice  required  under  chapter  478  of  the  Laws  of 
1862,  under  and  by  which  he  acquired  a  lien  thereon.  It  further 
alleges,  that  on  the  loth  November,  1875,  the  defendant  Matilda 
Moore  and  her  husband  executed  and  delivered  to  the  defendant 
Joseph  G.  Moore  a  paper  purporting  to  be  a  deed  of  said  premises ; 
•md  on  the  same  day  Joseph  G.  Moore  executed  a  paper,  purport- 
ing to  be  a  mortgage,  to  the  defendant  Benjamin  F.  Moore,  and 
also  another  to  Matilda  Moore.  That  the  said  instruments  were 
designed  to  defeat  plaintiff's  lien ;  were  without  consideration  and 
fraudulent,  and  asks  to  have  such  instruments  declared  void  ;  that 
there  be  an  accounting  and  settlement  between  plaintiff  and  defend- 
ant Matilda  Moore  of  the  amount  due  him,  and  that  a  sale  of  the 
interest  of  the  defendant  Matilda  Moore  be  directed  and  the  pro- 
ceeds applied  to  the  payment  of  the  claim  of  the  plaintiff,  with  Ms 
costs,  and  for  such  other  relief  as  to  the  court  may  seem  just.  To 
this  there  was  put  in  a  demurrer,  that  two  separate  and  distinct 
causes  of  action  had  been  improperly  united  in  the  complaint. 

Frank  E.  JSlackwell,  for  the  appellant. 
Justus  Palmer,  for  the  respondents. 


TISDALE  v.  MOORE. 


SECOND  DEPARTMENT,  JUNE  TERM,  1876. 


BARNARD,  P.  J.  : 

I  think  the  complaint  sets  forth  but  a  single  cause  of  action. 

The  plaintiff  avers  that  he  performed  labor  and  furnished  mate- 
rials to  repair  three  houses  on  the  land  of  Matilda  Moore.  That 
he  tiled  and  served  the  notice  required  under  chapter  478  of  the 
Laws  of  1862,  on  the  16th  of  November,  1875,  under  and  by 
which  he  acquired  a  lien  upon  the  premises  described  in  the  com- 
plaint. 

The  complaint  further  avers  that  Matilda  Moore,  on  that  day, 
was  the  owner  of  the  premises. 

The  complaint  further  avers  that  on  the  15th  of  November, 
1875,  the  defendant  Matilda  Moore,  and  her  husband,  executed  and 
delivered  a  paper,  purporting  to  be  a  deed,  to  one  Joseph  G. 
Moore,  and  on  the  same  day  Joseph  G.  Moore  executed  a  paper, 
purporting  to  be  a  mortgage  thereon,  to  Benjamin  F.  Moore.  Also 
on  the  same  day  he  executed  a  pretended  mortgage  thereon  to 
Matilda  Moore. 

That  both  deed  and  mortgages  were  designed  by  the  parties  to 
them  to  defeat  plaintiff's  lien  ;  that  they  were  fraudulent,  without 
any  consideration  and  void. 

Under  these  averments,  by  our  statute,  the  pretended  papers 
were,  and  are,  void  as  against  the  plaintiff.  (2  R.  S.  [2d  ed.,  m.  p.], 
137,  §  1.) 

The  cause  of  action  is  simply  that  plaintiff  has  a  lien  as  of  the  16th 
of  November,  1875,  and  he  asks  its  enforcement  under  the  act 
above  referred  to.  The  plaintiff  has  inserted  in  his  complaint  only 
"  such  other  matters  and  allegations  as  maybe  material  and  proper 
to  establish  the  claim  and  cause  of  action  of  the  claimant  and  plain- 
tiff," as  he  was  authorized  to  do  by  section  3  of  chapter  478, 
Laws  of  1862. 

Unless  the  plaintiff  can  maintain  his  complaint  the  lien  law  is 
useless.  By  giving  a  fraudulent  and  void  deed  the  owner  may  pre- 
vent a  claimant  from  enforcing  a  lien.  The  lienor  must  prove 
ownership  at  the  date  of  filing  his  notice.  He  cannot  do  that  with- 
out proof  to  destroy  the  deed.  To  do  that  so  as  to  effectually  free 
the  land  from  its  operation  he  must  have  the  grantees  of  the  void 
papers  as  parties. 


KNICKERBOCKER  LIFE  INS.  CO.  v.  NELSON.         21 
SECOND  DEPARTMENT,  JUNE  TERM,  1876. 

If  the  prayer  for  judgment  upon  the  facts  alleged  is  for  too  much, 
it  is  not  a  ground  of  demurrer. 

Order  sustaining  demurrer  overruled,  with  costs,  and  demurrer 
overruled,  with  costs,  with  leave  to  defendants  to  answer  in  twenty 
days  on  payment  of  costs. 

GILBERT,  J.,  concurred.    DYKMAN,  J.,  not  sitting. 

Order  sustaining  demurrer  reversed,  with  costs,  and  demurrer 
overruled  with  costs. 


THE  KNICKERBOCKER  LIFE  INSURANCE  COMPAQ  iT, 
RESPONDENT,  v.  GEORGE  W.  NELSON  AND  RUEA  NELSON, 
IMPLEADED  WITH  OTHERS,  APPELLANTS. 

Mortgage  foreclosure  —  Usury  —  Guaranty  —  Fraud — trial  of  issues  of,  by  the  court, 

discretionary. 

In  an  action  for  the  foreclosure  of  four  bonds  and  mortgages  executed  by  the 
defendant  George  W.  Nelson ;  for  a  sale  of  the  mortgaged  premises  and  judg- 
ment for  deficiency  against  him,  and  for  a  judgment  against  the  defendant  Ruea 
Nelson  for  any  deficiency  up  to  $20,000,  on  the  ground  of  the  execution  by  him 
of  an  instrument,  by  which  he  covenanted  that  on  a  sale  under  foreclosure  of 
said  mortgages,  the  mortgaged  premises  should  yield  a  sum  sufficient  to  pay  the 
amount  decreed,  with  the  costs  and  expenses  of  sale,  or  in  default  thereof  he 
would,  on  demand,  pay  any  deficiency  up  to  $20,000  which  might  result  on 
such  sale  or  sales,  the  defendant  George  W.  Nelson  set  up  usury  as  a  defense, 
and  the  defendant  Ruea  Nelson  also  plead  usury,  and  that  the  aforesaid  instru- 
ment executed  by  him  was  procured  to  be  so  executed  by  fraud. 

Held,  that  it  was  an  equitable  action  purely,  and  it  rested  in  the  discretion  of  the 
court  either  to  ask  the  aid  of  a  jury  to  inform  the  conscience  of  the  court,  or  to 
decide  the  case  without  such  aid;  that  the  defendant  could  not  claim,  as  matter 
of  right,  to  have  the  issues  framed  and  tried  at  law. 

APPEAL  from  an  order  made  at  a  Special  Term  denying  a  motion 
by  the  defendants  Nelson  to  settle  the  issues  to  be  tried  by  a  jury. 
The  action  was  brought  for  the  foreclosure  of  four  bonds  and  mort- 
gages, amounting  to  $70,000,  executed  by  George  W.  Nelson  and 
wife  to  the  plaintiff.  The  defendant  George  W.  Nelson  plead  usury, 
and  the  defendant  Ruea  Nelson  also  plead  usury,  and  that  a  certain 


22         KNICKERBOCKER  LIFE  INS.  CO.  t>.  NELSON. 

SECOND  DEPARTMENT,  J  UNE  TERM,  1876. 

instrument  executed  by  him,  under  seal,  wherein  he  covenanted  to 
pay  any  deficiency  up  to  $20,000  that  might  arise  on  the  sale  or 
sales  under  foreclosure  of  said  mortgages,  would  be  paid  by  him  on 
demand,  was  obtained  by  fraud,  setting  forth  in  his  answer,  at  length, 
the  facts  in  relation  thereto.  A  motion  was  made  by  the  defendants 
Xelson  on  the  pleadings,  and  questions  of  fact  proposed  to  be  sub- 
mitted by  them  to  a  jury  for  trial,  for  an  order  settling  the  issues 
between  them  and  the  plaintiff  for  trial  by  jury,  which  motion  was 
denied,  and  the  defendants  Nelson  appeal  from  the  order  of  denial 
to  this  court. 

Morris  do  Pearsall,  for  the  appellants  Nelson. 

I.  The  complaint  asks  a  judgment  for  money  only  against  the 
defendant  Ruea  Nelson  ;  there  is  no  claim  against  him  for  equit- 
able relief;  it  is  purely  a  legal  demand,  and  as  to  the  issues  between 
him  and  the  plaintiff,  he  is  entitled  to  a  trial  by  jury  as  a  matter 
of  strict  right.     (Code  of  Pro.,  §  253  ;  2  R.  S.,  409,  §  4 ;  Const,  of 
N.  Y.,  art.  1,  §  2 ;  Davis  v.  Morns,  36  N.  Y.,  569  ;  Wynehamer  v. 
People,  13  id.,  426 ;  Greason  v.  Keteltas,  17  id.,  498 ;  Bradley  v. 
Aldrich,  40  id.,  510;  Lattin  v.   McCarty,±l  id.,   110,   112,  and 
note ;  Hudson  v.  Caryl,  44  N".  Y.,  555 ;  Penn.  Coal  Co.  v.  DeL 
Hud.  Co.,  1  Keyes,  72,  76.) 

II.  The  plaintiff  cannot,  by  stating  in  its  complaint  facts  entitling 
it  to  equitable  relief  as  to  some  defendants,  and  purely  legal  relief 
as  to  this  defendant,  deprive  him  of  his  constitutional  right  of  a 
trial  by  jury.      (Davis  v.  Morris,  36  N.  Y.,  569;  Code  of  Pro., 
§253;  Lattin   v.  McCarty,   41  id.,    112  and   note;  Bradley   v. 
Alflrich,  40  N.    Y.,   510 ;  Hudson  v.    Caryl,  44  id.,  555  ;  Penn. 
Coal  Co.  v.  Del.  and  Hud.  Canal  Co.,  I  Keyes,  72,  76.) 

III.  The  court  may,  in  its  discretion,  in  equity  actions,  order  the 
.vhole  issue,  or  any  specific  questions  of  fact,  to  be  tried  by  a  jury. 
( Code  of  Procedure,  §  254 ;    Fanners  and  Mechanics'  Bank   v. 
Jodin,  37  N".  Y.,  353  ;  Supreme  Court  Rule,  40.) 

IV.  An  issue  of  fraud  ought  to  be  tried  by  a  jury.     (Freeman 
i-.  Atlantic  Insurance  Co.,  13  Abb.,  124;  Levy  v.  Brooklyn  Fin 
Insurance  Co.,  25  Wend.,  687.) 

Henry  W.  Johnson,  for  the  respondents. 


DREW  v.  ANDREWS.  2'3 

SECOND  DEPARTMENT,  JTTNE  TERM,  1876. 

BARNARD,  P.  J. : 

This  is  purely  an  equitable  action.  The  complaint  is  for  the 
foreclosure  of  certain  mortgages  accompanied  by  a  demand  for 
judgment  for  deficiency,  if  any  should  result,  against  the  person 
who  executed  the  bonds. 

The  answer  sets  up  as  a  defense  usury,  and  that  the  bonds  and 
mortgages  were  procured  by  fraud.  It  was  never  a  matter  of  right 
that  issues  should  be  framed  and  sent  to  a  jury  in  equitable  actions. 
It  always  rested  in  the  discretion  of  the  court  either  to  ask  the  aid 
of  a  jury  to  inform  the  conscience  of  the  court,  or  to  decide  the 
case  without  such  aid. 

There  is  nothing  in  the  present  case  calling  for  a  reversal  of  the 
order  at  Special  Term  refusing  to  frame  issues  to  be  tried  at  law. 
Whether  or  not  usury  is  proven  to  have  entered  into  the  contract, 
or  whether  or  not  the  mortgages  were  procured  by  false  and  fraud- 
ulent representations,  are  questions  which  equity  judges  are  pecul- 
iarly fitted  to  determine  by  reason  of  the  large  experience  which 
they  have  derived  from  trials  in  which  such  defenses  are  set  up.  I 
consider  the  finding  of  an  intelligent  and  impartial  court  upon 
questions  like  these  more  to  be  relied  on  than  the  verdict  of  a  jury 
rhereon. 

Order  affirmed,  with  ten  dollars  costs  and  disbursements. 

GILBERT,  J.,  concurred.     DYKMAN,  J.,  not  sitting. 
Order  affirmed  with  costs  and  disbursements. 


THOMAS   DREW,    RESPONDENT,   v.    ALFRED    ANDREWS, 

APPELLANT. 

Trial  by  Jury  —  Refusal  to  restate  evidence,  when  requested  by  jury  —  Pleadings  not 
evidence  to  go  to  the  jury. 

>n  the  trial  of  an  action  for  work  and  labor  done  and  materials  furnished  by  the 
;i!aintiff  for  the  defendant,  after  the  jury  had  retired  they  requested  of  the 
rourt  information  as  to  what  a  witness  for  defendant  had  testified  to,  in  refer 
ence  to  a  portion  of  the  work  claimed  for.  Held,  error  for  the  court  to  refuse 
the  request  of  the  counsel  for  the  defendant,  made  in  the  presence  of  plaintiff  a 
counsel,  to  bring  in  the  jury  and  state  the  evidence  to  them  as  requested 


f  4  DREW  v.  ANDREWS. 


SECOND  DEPARTMENT,  JUNE  TERM,  1876. 


When  the  jury  had  returned  into  court,  and  stated  that  they  had  found  for  the 
plaintiff  but  fixed  no  amount,  held,  error  for  the  court  to  direct  the  jury  to  take 
the  pleadings  and  return  again  and  fix  the  amount  The  pleadings  were  not 
evidence  even,  beyond  the  portion  thereof  admitted  in  the  answer. 

APPEAL  from  a  judgment  in  favor  of  the  plaintiff  entered  on 
the  verdict  of  a  jury,  and  from  an  order  refusing  a  new  trial  on  the 
minutes. 

This  action  was  brought  in  the  City  Court  of  Yonkers  by  Thomas 
Drew,  plaintiff,  against  Alfred  Andrews,  defendant,  to  recover  a 
balance  of  $382.60  alleged  to  be  due  from  the  defendant  to  the 
plaintiff  for  work,  labor  and  services  performed  in  the  building  of 
i  foundation  wall  and  a  stone  retaining  wall  and  walls  thereto, 
trenching  for  said  retaining  wall  and  extra  work  on  the  grounds 
of  defendant,  in  the  city  of  Yonkers,  and  in  the  grading  of  said 
grounds.  The  said  retaining  wall  and  walls  thereto  were  built 
and  said  grading  and  trenching  done,  under  a  written  contrac' 
between  the  parties  to  this  action.  After  the  jury  had  been  out 
about  two  hours  they  requested  of  the  court  information  as  to 
what  a  witness  for  defendant  had  testified  in  reference  to  a  portion  of 
the  work  claimed  for;  the  counsel  for  the  defendant,  in  the  presence 
of  plaintiff's  counsel,  asked  the  court  to  bring  in  the  jury  and  state 
the  evidence  to  them  as  requested,  which  the  court  refused  to  do. 
A  short  time  after  the  jury  returned  into  court,  said  they  had 
agreed  and  found  for  the  plaintiff,  fixing  no  amount.  Upon  being 
told  they  must  find  a  specific  amount  they  stated  they  were  unable 
to  do  so,  not  having  the  measurements.  The  court  thereupon 
directed  the  jury  to  take  the  pleadings  and  return  again  and  fix 
the  amount.  The  jury  found  for  the  plaintiff  in  the  exact  amount 
claimed,  and  in  the  exact  language  used  in  the  complaint. 

John  D.  Comstock,  for  the  appellant. 
Ralph  E.  Prime,  for  the  respondent. 

BAENAED,  P.  J. : 

I  think  there  should  be  a  new  trial  granted.    The  action  was  f< 
work  and  labor  done  by  plaintiff  for  defendant    ^ad  f'ji  materials 
furnished.     There  were  five  separate  causes  of  V<jr<v  s<»t  forth  in 


DREW  y.  ANDREWS.  25 


SECOND  DEPARTMENT,  JUNE  TERM,  1876. 


the  complaint.  The  answer,  while  admitting  some  work  done  at 
the  prices  claimed,  averred  that  it  had  been  fully  paid.  The  trial 
was  sharply  contested.  After  the  case  went  to  the  jury  and  they 
had  deliberated  for  about  two  hours  they  requested  of  the  court, 
information  as  to  what  a  witness  for  defendant  had  testified  in 
reference  to  a  portion  of  the  work  claimed  for.  The  counsel  for 
the  defendant,  in  the  presence  of  plaintiff's  counsel,  asked  the 
court  to  bring  in  the  jury  and  state  the  evidence  to  them  as 
requested.  This  most  reasonable  request  was  refused.  A  short 
time  after,  the  jury  returned  into  court  and  said  they  had  agreed. 
They  said  they  found  for  the  plaintiff,  fixing  no  amount.  Upon 
being  told  they  must  find  a  specific  amount  they  stated  they  were 
unable  to  do  so  not  having  the  measurements.  The  court  there- 
upon directed  the  jury  to  take  the  pleadings  and  retire  again  and 
fix  the  amount.  This  was  objected  to  by  defendant,  and  the  deci 
gion  of  the  court  permitting  the  jury  to  take  the  pleadings  duly 
excepted  to.  The  jury  then  fixed  the  exact  amount  claimed  by 
plaintiff,  with  interest  irom  the  date  claimed  in  the  complaint, 
with  costs  as  claimed  therein.  The  amount  of  the  claim  proven  on 
the  trial,  was  $1,629.01,  with  possible  thirty-one  dollars  additional. 
The  amount  of  payment  proven  was  $1,304.91.  The  verdict  is 
for  a  greater  sum  than  the  difference  between  either  claim  after 
deducting  payments.  The  pleadings  were  not  evidence  even, 
beyond  the  portion  thereof  admitted  in  the  answer. 

1  think  the  judgment  should  be  reversed  and  new  trial  granted, 
costs  to  abide  event. 

GILBERT,  J.,  concurred. 

Present  —  BARNARD,  P.  J. ,  GILBERT  and  DTKMAN,  JJ. 

Judgment  and  order  denying  new  trial  reversed,  and  i  ew  triaJ 
granted,  costs  to  abide  event. 
HUN— VOL.  VHI.        4 


26  FROST  v.  VONKERS  SAVINGS  BANK. 

SECOND  DEPAKTMENT,  JUNE  TERM,  1876. 


RUFUS  C.  FROST,  PLAINTIFF,  v.  THE  YONKERS  SAVINGS 
BANK,  DEFENDANT. 

Prior  mortgage — Subrogation  of  subsequent  ineumbrancer — Judgment  —  sheriff's 
certificate  of  tale  on — vaUd  against  prior  undisclosed  agreement  of  judgment 
creditor. 

The  defendant  was  the  holder  of  a  first  mortgage  on  premises  on  which  there 
was  a  prior  judgment.  The  plaintiff  was  the  assignee  of  a  mortgage  on  the 
same  premises,  between  which  and  the  defendant's  mortgage  there  existed  two 
other  mortgages.  Prior  to  the  assignment  of  the  mortgage  to  the  plaintiff,  the 
holder  of  the  aforesaid  judgment  agreed  with  plaintiff's  assignor  to  postpone 
the  lien  of  such  judgment  to  that  of  the  mortgage  assigned  plaintiff.  In  Janu- 
ary, 1875,  the  premises  were  sold  under  the  judgment,  and  purchased  by  the 
defendant,  the  holder  of  the  first  mortgage,  the  sale  being  made  without  notice 
of  the  agreement  to  make  it  subordinate  to  plaintiff's  mortgage. 

In  February,  1875,  the  defendant  foreclosed  its  mortgage,  made  the  plaintiff  a 
party  defendant  as  subsequent  incumbrancer,  who  appeared  by  attorney,  but 
put  in  no  answer.  Judgment  of  foreclosure  and  sale  was  entered  March  22, 
1875. 

May  21, 1875,  plaintiff  tendered  the  defendant  the  amount  due  on  the  foreclosure 
judgment,  and  demanded  an  assignment  of  the  mortgage  and  judgment. 
Defendant  refused  to  receive  the  money  unless  tue  plaintiff  would  pay  the 
additional  sum  for  which  the  premises  were  sold  to  it  on  the  execution  issued 
under  the  prior  judgment. 

Held,  that  the  tender  did  not  discharge  the  lien;  that  the  plaintiff  had  no  standing 
as  to  the  land  which  entitled  him  to  an  assignment  of  the  defendant's  mortgage. 

Held,  also,  that  the  holder  of  the  judgment  having  the  title  and  the  right  to  enforce 
it,  making  no  reservation  and  giving  no  notice  indicating  that  it  was  not  what 
it  purported  to  be,  viz.,  the  first  lien  on  the  property  sold,  the  purchaser  at  the 
sheriff's  sale  took  the  title,  without  reference  to  the  agreement  made  by  such 
judgment  creditor  postponing  its  lien. 

CROSS  appeals  by  plaintiff  and  defendant  from  a  judgment  entered 
upon  the  report  of  a  referee. 

On  the  20th  day  of  June,  1872,  one  Hugh  McElroen  was  the 
owner  in  fee  of  certain  real  estate  in  the  city  of  Yonkers,  West- 
shester  county,  at  which  time  he  gave  a  mortgage  on  said  premises, 
hia  wife  Eliza  uniting  with  him,  to  the  defendant  for  the  sum  of 
$4,000  and  interest,  which  mortgage  was  recorded. 

The  premises  were  at  this  time  subject  to  the  lien  of  a  certain 
judgment  for  $437.72,  recovered  by  George  Thomas  against  said 
Hugh  McElroen,  docketed  in  the  clerk's  office  of  Westchestei 


FROST  v.  YONKERS  SAVINGS  BANK.  27 

SECOND  DEPARTMENT,  JUNE  TERM,  1876. 

county,  July  3,  1867.  This  judgment  was  assigned  to  Ralph  E. 
Prime  on  the  9th  day  of  May,  1868. 

April  4.  1874,  Hugh  McElroen  and  Eliza,  his  wife,  executed  and 
delivered  to  William  F.  Lawrence  a  mortgage  on  said  premises 
bearing  date  January  1,  1874,  which  was  duly  recorded.  This 
mortgage  was  assigned  by  said  Lawrence  to  the  plaintiff  May  1, 
3874. 

Prior  to  the  assignment  of  the  last  mentioned  mortgage  to  the 
plaintiff,  Ralph  E.  Prime  agreed  with  Lawrence  by  an  instrument 
in  writing  dated  April  28,  1874,  executed  and  acknowledged  by 
him,  but  not  recorded,  to  postpone  the  lien  of  the  judgment  which 
iiad  been  assigned  to  him  by  Thomas  to  the  lien  of  the  said  $3,000 
mortgage  of  said  William  F.  Lawrence. 

On  the  4th  day  of  January,  1875,  the  defendant,  through  E.  P. 
Baird,  its  attorney,  purchased  the  property  in  question  for  $606.07, 
at  a  sheriff's  sale,  under  and  by  virtue  of  an  execution  issued  on 
the  Thomas  judgment,  and  received  a  certificate  of  sale  therefor. 
The  above  purchase  was  made  without  any  notice  of  the  aforesaid 
agreement. 

In  February,  1875,  the  defendant  commenced  an  action  for  the 
foreclosure  of  its  mortgage.  Judgment  of  foreclosure  and  sale  was 
entered  March  22,  1875.  In  this  action  to  foreclose,  the  plaintiff 
was  made  a  party  defendant,  as  a  subsequent  mortgagee  and  incum- 
brancer.  He  appeared  by  attorney,  but  put  in  no  answer. 

On  May  21,  1875,  the  plaintiff  tendered  to  the  defendant  the 
amount  due  upon  defendant's  judgment  of  foreclosure  and  sale,  and 
demanded  of  said  defendant  an  assignment  of  the  mortgage  and 
decree,  and  that  he  (plaintiff)  be  permitted  to  redeem  the  said 
premises  from  defendant's  mortgage  and  judgment  or  decree. 

The  defendant  refused  to  receive  this  money  unless  the  plaintiff 
would  pay  to  the  defendant  the  additional  sum  of  $606.70,  being 
the  sum  for  which  the  premises  in  question  were  sold  at  the  execu- 
tion sale. 

Intervening  the  said  mortgage  of  the  defendant  and  the  mort- 
gage of  the  plaintiff,  Hugh  McElroen  and  wife  executed  two  other 
mortgages,  covering  the  premises  in  question,  for  the  principal  sum 
in  the  aggregate  of  $3,000,  which  are  liens  subsequent  to  defend- 
ant's mortgage,  and  prior  to  plaintiff 's  mortgage. 


28  FROST  v.  YONKERS  SAVINGS  BANK. 

SECOND  DEPARTMENT,  JDNB  TERM,  1876. 

The  referee,  on  the  trial  of  the  action,  found  as  conclusions  of 
law :  That  the  plaintiff  was  entitled  to  redeem  the  said  mortgage 
and  judgment  of  foreclosure  and  sale,  and  was  entitled  to  an  assign- 
ment of  said  mortgage  and  judgment  of  foreclosure  from  the  defend- 
ant, upon  the  payment  to  the  defendant  of  the  amount  due  thereon 
to  the  21st  day  of  May,  1875.  That  the  lien  of  the  said  judgment, 
by  virtue  of  the  said  Prime  agreement,  was  postponed  and  b&came 
subordinate  to  the  lien  of  the  plaintiff's  said  mortgage,  and  that 
the  right  and  interest  of  the  purchaser  upon  the  execution  sale  are 
subordinate  and  subsequent  to  the  lien  of  the  said  mortgage  of  the 
plaintiff,  from  which  defendant  appealed.  That  the  tender  so  made 
to  the  defendant  of  the  amount  due  on  its  said  mortgage  and  judg- 
ment of  foreclosure  did  not  discharge  the  lien  of  said  mortgage, 
nor  did  such  tender  invalidate  the  said  judgment  of  foreclosure  and 
sale,  or  in  any  respect  impair  its  force  and  effect,  from  which  plain 
tiff  appealed. 

Samuel  A.  Noyes,  for  the  plaintiff. 
Matt.  H.  Ellis,  for  the  defendant. 

BARNARD,  P.  J. : 

In  this  case  there  are  two  appeals.  The  plaintiff  is  a  junior 
mortgagee,  holding  a  mortgage  on  lands  in  Yonkers,  upon  which 
the  defendant  holds  a  prior  mortgage.  There  are  two  intervening 
mortgages,  held  by  strangers  to  the  action. 

The  plaintiff  tendered  to  the  defendant  the  amount  due  on 
defendant's  mortgage,  and  demanded  an  assignment.  This  was 
refused.  The  referee  held  that  the  tender  did  not  discharge  the 
lien. 

I  think  the  referee  was  correct.  The  plaintiff  had  no  standing 
us  to  the  land,  which  entitled  him  to  pay  the  mortgage  debt  of 
defendant. 

It  is  not  like  the  case  of  Korfoight  v.  Cady,  where  the  owner  of 
the  fee  tendered  the  amount  of  the  mortgage  to  free  his  land,  but 
the  case  of  a  mortgagee  tendering  to  a  prior  mortgagee.  (Ham 
v.  Jos,  66  Barb.,  232.) 

Besides  the  tender  was  not  made  to  extinguish  the  lien  but  was 


FROST  v.  YONKERS  SAVINGS  BANK.  29 

SECOND  DEPARTMENT,  JUNE  TERM,  1876. 

accompanied  with  a  demand  for  4n  assignment.  There  is  no  legal 
ground  for  the  plaintiff 's  appeal. 

The  defendant  also  appeals,  and  the  case  presents  purely  a  ques- 
tion of  law  upon  the  facts  found  by  the  referee. 

The  plaintiff  had  a  fourth  mortgage  upon  the  property,  and  the 
defendant  the  first  mortgage  as  already  stated.  There  was  a  judg- 
ment prior  to  all  the  mortgages.  The  holder  of  this  judgment, 
by  a  private  arrangement  with  plaintiff,  agreed  to  postpone  the 
lien  of  the  judgment  to  that  of  the  fourth  mortgage. 

He  then  issued  an  execution  on  the  judgment,  and  at  the 
sheriff's  sale  the  defendant  paid  the  full  amount  of  the  judgment, 
and  took  the  sheriff's  certificate  of  sale  in  entire  ignorance  of  the 
agreement  between  plaintiff  and  the  holder  of  the  judgment ;  under 
this  certificate  the  defendant  would  be  entitled,  at  the  proper 
time,  to  a  deed  of  all  the  right,  title  and  interest  of  the  judgment 
debtor,  at  the  date  of  the  entry  of  the  judgment. 

I  think  the  defendant  took  the  judgment  debtor's  interest, 
without  reference  to  the  secret  agreement. 

The  holder  of  the  judgment  had  the  title  and  the  right  to 
enforce  it.  He  made  no  reservation,  and  gave  no  notice  indicating 
that  it  was  not  what  it  purported  to  be,  the  first  lien  on  the  prop- 
erty sold.  I  am  unable  to  see  any  reason  which  entitles  plaintiff  to 
an  assignment  of  defendant's  mortgage.  It  puts  him  in  no  better 
position  than  he  is  now. 

The  sale  under  plaintiff's  mortgage  is  for  the  benefit  of  all  sub- 
sequent claims,  and  the  priority  of  lien  can  be  determined  on 
proceedings  to  distribute  surplus. 

If  a  prior  mortgagee  may  be  compelled  to  assign  his  mortgage 
to  a  subsequent  one,  when  there  are  more  than  one  subsequent,  to 
which  one  must  he  assign  ?  Why  pass  over  the  two  intervening 
mortgages,  and  assign  to  plaintiff. 

I  think  the  judgment  should  be  reversed,  and  a  new  trial 
granted,  at  Special  Term,  costs  to  abide  event. 

Present — BARNARD,  P.  J.,  and  GILBERT,  J. ;  DYKMAN,  J.,  not 
fitting. 

Judgment  reversed,  with  costs. 


30        MATTER  OF  PROSPECT  PARK  &  C.  I.  R.  R.  CO. 

SECOND  DEPARTMENT,  JUNE  TERM,  1876. 


IN  THE  MATTER  OF  THE  APPLICATION  OF  THE  PROSPECT 
PARK  AND  CONEY  ISLAND  RAILROAD  COMPANY 
TO  ACQUIRE  TITLE  TO  LANDS  IN  KINGS  COUNTT,  NOW  OF  WIL- 
LIAM MOYNAHAN  AND  OTHERS,  AND  TWENTY-TWO  LIKE 

CABE8. 

Railroad  —  Eminent  domain —  Defective  title  —  right  to  perfect  under  chapter  140  of 
1850 —  Public  highway  —  notice  to  commissioners  of. 

it  having  been  held  that  the  petitioners,  a  railroad  company,  obtained  no  title  to 
the  lands,  as  against  the  owners  of  the  fee,  by  the  legislative  permission  to  lay 
down  their  tracks  on  a  certain  highway  on  which  they  had  built  their  road,* 
orders  made  on  an  application  by  them  for  the  appointment  of  commissioners 
to  assess  the  value  of  the  lands  for  the  purpose  of  compensating  the  owners 
should  be  sustained,  on  the  ground  that  the  case  comes  within  that  part  of 
the  general  railroad  act  (chap.  140,  Laws  of  1850),  which  permits  a  railroad 
company  to  perfect  a  title  found  defective. 

When  the  legislature  has  located  a  railroad  on  an  avenue  or  highway,  the  necea- 
sity  of  notice  and  agreement  with  the  commissioners  of  highways  is  dis- 
posed of. 

APPEALS  from  orders  made  at  a  Special  Term,  in  twenty-two 
cases,  appointing  commissioners  to  ascertain  and  appraise  the  com- 
pensation to  be  made  to  each  of  the  respondents  respectively,  for 
real  estate  proposed  to  be  taken,  and  on  which  the  applicant's  road 
was  constructed. 

On  an  appeal  from  a  judgment  in  favor  of  the  Washington 
Cemetery  against  this  defendant  perpetually  restraining  it  from 
working,  using  and  operating  its  railroad  over  Gravesend  avenue, 
laid  out  by  special  act  of  the  legislature  (chap.  531,  Laws  of  1873), 
it  was  held  that  the  fee  of  the  land  was  not  taken,  but  an  ease- 
ment only  for  the  purposes  of  the  highway.  (Reported  7  Hun,  655.) 

Application  was  therefore  made  by  defendant  at  Special  Te^m 
for  the  appointment  of  commissioners  to  appraise  the  compensa- 
tion to  be  made  to  the  several  owners  or  persons  interested  in  the 
land  to  be  taken  under  the  act  entitled  "  An  act  to  authorize  the 
formation  of  railroad  corporations  and  to  regulate  the  same,"  passed 
April  2,  1850  (chap.  140),  on  the  grounds  that  the  lands  in  ques- 
tion were  required  for  the  purposes  of  its  incorporation,  to  wit,  foi 
•  Washington  Cemetery  v.  P.  P.  and  G.  I.  R.  R.  Go.,1  Hun,  655. 


MATTER  OF  PROSPECT  PARK  &  C.  I.  R.  R.  CO.        31 

SECOND  DEPARTMENT,  JUNE  TERM,  1876. 

the  purpose  of  constructing,  maintaining  and  operating  its  road, 
and  that  they  sought  to  acquire  the  right  or  easement  so  to  con- 
struct, maintain  and  operate  their  road  over  such  land.  That 
application  had,  for  such  purpose,  been  made  by  them  to  the 
owners,  and  that  they  could  not  acquire  title  thereto  by  reason  of 
the  inability  of  the  parties  to  agree,  and  on  such  application  the 
orders  here  appealed  from  were  made. 

Benjamin  J.  Hitchinys,  for  the  appellant. 
John  H.  Bergen,  for  the  respondent. 

BABNARD,  P.  J. : 

It  was  decided  at  the  last  term  of  this  court,  that  the  Prospect 
Park  and  Coney  Island  Railroad  Company  obtained  no  title  to  the 
lands  as  against  the  owners  of  the  fee,  by  the  legislative  permis- 
sion to  lay  down  their  railroad  on  Gravesend  avenue. 

Their  application  for  the  appointment  of  commissioners  to  assess 
the  value  of  the  lands  is  made  for  the  purpose  of  making  compen- 
sation to  the  owners.  I  think  the  ease  falls  within  that  part  of  the 
statute  which  permits  a  railroad  company  to  perfect  a  title  found 
defective.  The  company  claimed  that  the  people  took  the  fee  of  the 
lands  in  Gravesend  avenue,  not  in  direct  terms  but  as  a  necessary 
consequence  of  the  language  used.  They  built  their  road  under 
this  supposition.  It  has  been  held  otherwise.  The  direction  of 
the  law  that  the  company  shall  attempt  to  buy  by  agreement,  is 
sufficiently  complied  with.  The  company  believe  that  the  land- 
owners' interest  is  merely  nominal  and  therefore  they  offer  a 
merely  nominal  price  therefor.  The  parties  cannot  agree  and 
there  is  no  other  way  but  the  appraisal  of  a  commission. 

The  legislature  have  located  the  defendant's  load  in  this  avenue. 
This  dispenses  with  all  necessity  of  notice  and  agreement  with  the 
commissioners  of  highways.  I  think  no  sufficient,  cause  was  shown 
why  the  court  should  not  grant  the  order. 

Affirmed,  with  ten  dollars  costs  and  dibsursements. 

Present  —  BAKNAKD,  P.  J.,  and  DYKMAN,  J. ;  GILBERT,  J.,  not 
bitting. 

Order  affirmed,  with  costs  and  disbursements. 


82  BOYLE  v.  CITY  OF  BROOKLYN. 

SECOND  DEPARTMENT,  JUNK  TERM,  1876. 


CATHERINE   A.   BOYLE,   RESPONDENT,   v.  THE    CITY  OF 
BROOKLYN,  APPELLANT. 

Attessment —  action  to  tet  aside  as  illegal  —  defects  in  —  must  not  be  such,  as  would 
appear  in  proceedings  to  enforce. 

In  an  action  to  vacate  and  set  aside  an  assessment  as  illegal,  it  is  not  enough  to 
allege  that  the  proceedings,  although  in  fact  invalid,  appear  on  their  face  to  be 
regular,  but  to  sustain  the  action  it  must  appear  that  the  defects  alleged  are 
such  as  would  not  necessarily  appear  in  proceedings  to  enforce  the  lien  of  the 
assessment 

APPEAL  from  an  order  made  at  a  Special  Term  overruling  a 
demurrer  interposed  to  a  complaint,  on  the  ground  that  it  did 
not  state  facts  sufficient  to  constitute  a  cause  of  action.  The 
complaint  set  forth  certain  proceedings  taken  by  the  former 
board  of  water  and  sewerage  commissioners  of  the  city  of 
Brooklyn,  under  chapter  652,  Laws  of  1870,  for  the  repave- 
ment  of  Atlantic  avenue  which,  subject  to  the  provisions  of 
chapter  387  of  the  Laws  of  1874,  resulted  in  an  assessment 
upon  plaintiff's  land,  which  she  sought  to  remove  as  a  cloud 
upon  her  title,  and  alleged,  in  substance,  that  upon  the  pro- 
ceedings for  repaving  Atlantic  avenue,  which  appear  regular  and 
correct  and  according  to  the  statute,  a  majority  of  the  owners  of 
lots  fronting  thereon  did  not  sign  the  petition  therefor,  because 
persons  signing  the  same,  as  owners  fronting  thereon,  were  not 
such  and  had  no  right  to  be  included  in  the  petition,  and  without 
their  names  a  majority  of  said  owners  did  not  sign.  That  such 
assessments,  on  her  premises  for  the  repaving  aforesaid,  were 
unjust  and  illegal,  and  because  the  irregularity  stated  did  not 
appear  in  the  proceedings  in  relation  thereto,  but  were  outside  of 
the  same,  the  plaintiff  was  remediless  except  by  this  action  wherein 
ehe  could  show  the  facts  and  matters  herein  set  forth  ;  therefore 
she  asked  that  the  assessment  on  her  premises  be  decreed  to  be 
vacated  and  set  aside. 

William  C.  De  Witt,  for  the  appellant. 
Philip  S.  Crooke,  for  the  respondent. 


BOYLE  v.  CITY  OF  BROOKLYN.  33 

SECOND  DEPARTMENT,  JUNE  TERM,  1876. 

GILBERT,  J. : 

This  case  is  clearly  within  the  principle  of  Marsh  v.  The  City  of 
Brooklyn  (59  N.  Y.,  280).  It  is  not  enough  that  the  proceedings, 
although  in  fact  invalid,  appear  on  their  face  to  be  regular.  The 
defects  alleged  must  be  such  as  would  not  necessarily  appear  in 
proceedings  to  enforce  the  lien  of  the  assessment.  That  is  not  the 
case  here.  Proof  of  a  petition  by  a  majority  of  the  owners  would 
be  essential  in  any  proceeding  founded  on  the  assessment  to  recover 
possession  of  the  premises  assessed.  Such  proof  necessarily  involves 
two  facts,  namely :  that  those  who  signed  the  petition  were  owners 
of  lots,  and  that  the  same  fronted  on  Atlantic  avenue.  If  the  fact 
be  as  alleged,  that  a  strip  of  land  intervened  between  the  north  line 
of  the  lots  of  some  of  the  petitioners,  and  the  southerly  line  of  the 
avenue  as  legally  constituted,  that  fact  would  show  that  the  names 
of  such  petitioners  ought  not  to  be  counted  in  determining  whether 
a  majority  had  petitioned  or  not.  Still  the  burden  would  remain 
upon  those  claiming  under  the  assessment  of  proving  that,  in  point 
of  fact,  a  majority  of  owners  whose  lots  fronted  on  the  avenue,  as 
legally  laid  out,  did  petition.  (59  N.  Y.,  supra  •  58  id.,  463  ;  41 
id.,  123  ;  56  id.,  257 ;  40  id.,  547  ;  48  id.,  406.) 

But  the  averment  of  the  complaint  on  this  subject  is  wholly 
defective.  It  states  no  fact  showing  that  the  strip  of  land  referred 
to  was  not  legally  incorporated  into  the  avenue,  nor  does  it  set  forth 
that  no  proceedings  were  taken  on  behalf  of  the  city  for  that  pur- 
pose, nor  that  it  was  not  ceded  to  the  city  or  dedicated  to  the  pub 
lie.  In  short,  it  avers  a  mere  legal  conclusion.  We  can  and  ought 
to  take  judicial  notice  of  the  fact  that  the  existence  of  Atlantic 
avenue  in  its  entire  width  had  been  repeatedly  recognized  by  the 
legislature  as  a  street,  before  the  assessment  in  question  was  imposed, 
and  that  as  early  as  1862  it  was  provided  by  statute  that  streets  and 
avenues  which  had  then  been,  or  might  thereafter  be,  thrown  out 
to  public  use,  and  used  as  such  for  five  years  continuously,  should 
be  deemed  and  taken  to  be  public  streets  and  avenues,  and  that  the 
city  of  Brooklyn  and  the  common  council  and  water  commissioners 
thereof  should  have  all  jurisdiction  and  power  in  respect  thereto, 
the'same  as  if  such  streets  and  avenues  had  been  opened  by  proceed- 
ings pursuant  to  the  charter  of  the  city  (Laws  1862,  chap.  63,  §  41, 
p.  204.)  The  complaint  contains  no  averment  that  the  strip  of  land 
HUN— VOL.  VIII.  5 


84          MATTER  OF  RHINEBECK  &  CONN.  R.  R.  CO. 
SBCOND  DEPARTMENT,  JUNK  TERM,  1876. 

mentioned  was  not  so  thrown  out  for  public  use,  and  used  for  five 
years  continuously.  Whether  this  provision  will  suffice  to  divest 
the  owner  of  such  strip  of  any  interest  in  the  land  or  not,  it  is 
immaterial  to  inquire.  It  is  sufficient  to  destroy  the  objection  of 
the  plaintiff  who  has  no  interest  therein,  that  other  persons  who 
own  lots  adjoining  such  strip  have  no  front  on  the  avenue. 

We  think  the  order  appealed  from  is  erroneous  and  should  be 
reversed,  and  that  the  defendant  should  have  judgment  on  the 
demurrer,  with  costs,  but  with  leave  to  the  plaintiff  to  amend  in 
twenty  days  on  payment  of  costs. 

BARNARD,  P.  J.,  concurred.     DYKMAN,  J.,  not  sitting. 

Order  overruling  demurrer  reversed,  with  costs,  and  demurrer 
sustained  with  leave  to  plaintiff  to  amend  in  twenty  days  on  pay- 
ment of  costs. 


IH  THE  MATTER  OP  THE  ACQUISITION  BY  THE  RHINEBECK 
AND  CONNECTICUT  RAILROAD  COMPANY  OF  THE 
TITLE  TO  CERTAIN  LANDS  OWNED,  ETC.,  APPELLANT,  BY  AL1DA 
G.  RADCLIFF  AND  OTHERS,  RESPONDENTS. 

Batiroad  —  acquisition  of  lands  by — Chapter  140,  Laws  of  1850  —  Chapter  282, 
Laws  of  1854  —  Entry  of  order  —  token  defeated  party  entitled  to  enter. 

A  railroad  company  presented  its  petition  to  the  Supreme  Court  to  acquire  title 
to  certain  lands.  The  owners  opposed  the  application,  but  the  court  appointed 
commissioners  of  appraisal.  The  commissioners  made  their  report  to  the  court, 
and  on  motion  of  the  company  an  order  was  made  confirming  it  and  directing 
the  amount  of  the  award  to  be  paid  to  the  owners  or  deposited  to  the  credit  of 
their  attorney.  The  company  refused  or  neglected  to  file  the  papers  or  pay  the 
award.  An  order  was  therefore  obtained  by  the  owners  for  the  company  to 
show  cause  why  the  petition,  order  thereon,  report,  and  order  confirming  it  should 
not,  be  filed,  and  on  the  return  day  an  order  was  made  directing  the  filing  of 
the  same,  the  payment  of  the  award  in  ten  days,  or  that  a  precept  issue  to  col 
lect  the  award;  from  which  order  the  company  appealed. 

Held,  that  the  recording  of  the  order  of  confirmation  and  payment  of  the  sum 
awarded  would  vest  the  title  to  the  land  in  the  company.  That  the  recording 
of  the  order  was  the  duty  of  the  clerk,  and  tlie  paymer.t  of  the  award  the  da'~ 
of  the  company.  That  the  right  of  the  owue-  to  have  both  performed  had  been 


MATTER  OF  RHINEBECK  &  CONN.  R.  R.  CO.          85 

SECOND  DEPARTMENT,  JUNE  TERM,  1876. 

adjudged  by  the  court,  and  the  rights  and  obligations  of  both  parties  had 
thereby  become  fixed,  subject  only  to  the  right  of  appeal  given  by  the  statute, 
and  neither  party  could  recede  or  abandon  the  proceeding  without  the  consent 
of  the  other. 

H.K  R.  Go.  v.  Outwater  (3  Sandf.  S.  C.,  689)  distinguished. 

By  section  5,  chapter  282,  Laws  of  1854,  the  court  is  vested  with  power  to  make 
all  necessary  orders  and  give  the  necessary  directions  to  carry  into  effect  the 
object  and  intent  of  the  statute  (chap.  140,  Laws  of  1850),  and  the  order 
appealed  from  came  within  this  power. 

If  a  party  who  is  entitled  to  enter  an  order  fails  to  do  so  within  twenty-four  hours 
after  the  decision  has  been  made,  any  party  interested  may  have  it  drawn  up 
and  entered. 

APPEAL  from  an  order  made  at  a  Special  Term,  directing  the 
petition  in  the  above  entitled  matter,  the  notice  of  presentation 
thereof  to  the  court,  the  order  appointing  commissioners,  the 
report  of  said  commissioners  and  the  order  of  confirmation  of  said 
report  (if  not  already  filed),  to  be  tiled  forthwith  with  the  clerk  of 
Dutchess  county,  and  that  the  said  company  forthwith  pay  the 
amount  awarded  by  said  commissioners  to  the  owners  or  deposit  it 
to  the  credit  of  their  attorney.  That  in  case  of  their  omission  to 
pay  or  deposit  said  amount  for  ten  days  after  service  of  the  order 
on  their  attorney  a  precept  issue  for  the  collection  of  said  amount. 

A.  Wager,  for  the  appellant. 
Frank  Loomis,  for  the  respondents. 

GILBEET,  J. : 

The  general  rule  is  that,  if  a  party  who  is  entitled  to  enter  an 
order  fails  to  do  so  within  twenty- four  hours  after  the  decision  has 
been  made,  any  party  interested  may  have  it  drawn  up  and  entered. 
(4  Wait's  Pr.,  606.)  And  it  is  the  duty  of  the  clerk  to  enter  orders, 
without  any  special  directions  from  the  court.  The  duty  is  merely 
Clerical,  and  in  no  case  will  the  omission  of  it  be  allowed  to  preju 
dice  the  substantial  rights  of  parties.  Upon  the  confirmation  oi 
the  report  of  the  commissioners  of  appraisment  in  a  proceeding 
under  the  general  railroad  act,  the  rights  of  parties  become  fixed, 
and  thereafter  neither  party  can  recede  or  abandon  the  proceeding 
without  the  consent  of  the  other.  (Laws  1850,  chap.  140.  §  18- 


3ti          MATTER  OF  RHINEBECK  &  CONN.  R.  R.  CO. 

SECOND  DEPARTMENT,  JUNE  TERM,  1876. 

In  /v  6y.,  Bing.  and  N.  Y.  A*.  R.  Co.,  4  Hun,  311  and  cases  cited.) 
The  case  of  Hudson  It.  E.  Co.  v.  Outwater  (3  Sandf.  S.  C.,  689)  is 
nut  in  conflict  with  this  rule.  The  charter  of  that  company 
required  that  payment  of  the  award  should  precede  the  action  of 
the  court  upon  the  report  of  the  commissioners,  and  in  that  case 
the  company,  before  any  action  on  their  award  to  the  owner,  took 
proceedings  under  another  provision  of  their  charter  to  change  the 
line  of  their  road.  The  court  merely  held  that  the  rights  of  the 
owner  had  not  become  fixed  by  the  award  alone,  but  that  in  order 
to  accomplish  that  result,  the  commissioners'  report  must  be  filed 
and  confirmed,  and  an  order  made  for  the  payment  of  the  sum 
awarded.  In  this  case,  however,  the  recording  of  the  order  of 
confirmation  and  payment  of  the  sum  awarded  will  vest  the  title 
to  the  land  in  the  company.  The  recording  of  the  order  is  the 
duty  of  the  clerk,  and  the  payment  of  the  money  is  the  duty  of 
the  company.  The  right  of  the  owner  to  have  both  performed  has 
been  adjudged  by  the  court,  and  the  rights  and  obligations  of  both 
parties  have  thereby  become  fixed,  subject  only  to  the  right  oi 
appeal  from  the  report,  given  by  the  statute. 

If  the  general  railroad  act  admitted  of  any  other  construction 
we  should  be  reluctant  to  adopt  the  one  contended  for  by  the 
appellant,  for  that  would  put  it  in  the  power  of  the  company,  by 
withholding  the  entry  of  the  order  of  confirmation,  to  retain  their 
right  to  appropriate  the  lands  of  the  respondent,  and  to  postpom- 
payment  therefor  indefinitely.  The  legislature,  we  think,  did  not 
intend  to  clothe  the  company  with  the  power  of  perpetrating  such 
injustice.  By  section  5  of  an  act  amending  the  general  railroad 
act  (chap.  282,  Laws  of  1854),  the  court  is  vested  with  power  to 
make  all  necessary  orders,  and  to  give  the  necessary  directions  to 
carry  into  effect  the  object  and  intent  of  the  statute  in  respect  to 
the  acquisition  of  lands  by  railroad  companies. 

We  think  the  order  appealed  from  is  within  this  power,  and  that 
it  should  be  affirmed  with  ten  dollars  costs,  and  disbursements. 

Present — GILBERT  and  DYKMAN,  JJ. ;  BARNARD,  P.  J.,  not  flit 
ting. 

Order  affirmed,  with  costs  and  disbursements. 


SAW-MILL  CO.  t>.  CITY  OF  BROOKLYN.  37 

SECOND  DEPARTMENT,  JUNE  TERM,  1876. 


THE  NEW  YORK  AND  BROOKLYN  SAW-MILL  AND 
LUMBER  COMPANY,  APPELLANT,  v.  THE  CITY  OF 
BROOKLYN,  RESPONDENT. 

Duties  imposed  on  municipal  officers — when  not  in  the  interest  or  prescribed  by  tho 
charter  of  the  municipality  —  corporation  not  liable  for  failure  or  refusal  of  itt 
officers  to  perform. 

A  municipal  corporation  is  not  liable  in  damages  to  a  private  party,  for  the  failure 
or  refusal  of  any  of  its  officers  to  perform  a  duty,  not  pertaining  to  the  interests 
or  franchises  of  the  corporation,  nor  arising  under  the  charter  thereof,  but 
imposed  upon  such  officers  by  a  special  act  of  the  legislature,  in  relation  to  an 
improvement  instituted  by  the  State  for  the  private  benefit  of  a  locality,  and 
not  for  that  of  the  people  of  the  city  at  large. 

Such  a  duty  is  not  imposed  upon  the  corporation,  nor  are  such  officers  called 
upon  to  act  in  their  corporate  capacity. 

For  the  purposes  of  such  an  act  they  become  the  public  and  administrative  officers 
or  agents  of  the  State,  and  they  act  or  refuse  to  act  for  the  State  and  the 
locality  to  be  benefited,  and  not' for  the  city. 

APPEAL  from  an  order  made  at  a  Special  Term  sustaining  a 
demurrer  to  a  complaint,  that  it  did  not  state  facts  sufficient  to  con- 
stitute a  cause  of  action. 

The  plaintiff  is  the  owner  of  lands  adjacent  to  the  Gowanus 
canal,  in  the  city  of  Brooklyn,  which  canal  is  a  short  inlet  of  Gowa- 
mis  bay  lying  in  a  oul  de  sac,  and  fronted  upon  either  side  by  pri- 
vate property,  except  where  it  is  crossed  by  the  numerous  streets 
of  said  city.  It  is  not  a  source  of  any  public  revenue,  nor  is  it  a 
highway  for  any  purpose  other  than  those  of  the  private  dock 
holders  upon  its  sides.  In  1866  an  act  (chap.  678,  Laws  of  1866), 
was  passed  for  the  improvement  of  that  canal.  By  that  act  the 
commissioners  named  in  it  were  directed  to  cause  docks  to  be  built 
on  the  sides  of  the  canal,  and  the  canal  itself  to  be  deepened^  Tho 
expense  of  this  work  was  to  be  met,  in  the  first  instance,  by  the 
issue  of  the  bonds  of  the  city,  and  the  city  to  be  reimbursed  by  an 
assessment  upon  the  adjacent  private  property  which  it  benefited. 
In  pursuance  of  this  act,  docks  were  erected  by  the  commissioners 
on  plaintiff's  land.  From  defective  construction  these  docks  sunk 
In  1871  another  act  (chap.  839)  was  passed  directing  an  assess- 


38  SAW-MILL  CO.  v.  CITY  OF  BROOKLYN. 

SECOND  DEPARTMENT,  JUNE  TERM,  1876. 

ment  to  be  levied  for  this  work,  and  also  directing  the  common 
council  to  cause  the  sunken  docks  to  be  rebuilt  at  the  expense  of 
the  city.  The  second  and  third  sections  of  the  act  are  as  follows  : 

The  common  council  of  the  city  of  Brooklyn  are  hereby  author- 
ized and  directed  to  cause  to  be  repaired  or  rebuilt,  at  the  expense 
of  said  city,  the  docks  on  the  sides  of  the  Gowanus  canal,  con- 
structed by  the  said  commissioners,  where  the  same  have  sunk  or 
become  unfit  for  use.  The  amount  necessary  to  rebuild  such  docks 
shall  be  raised  by  the  issue  of  certificates  of  indebtedness,  and 
there  shall  be  levied  and  collected,  in  the  same  manner  as  other 
taxes  in  the  city  of  Brooklyn  are,  and  be  paid  in,  in  the  year  one 
thousand  eight  hundred  and  seventy-two,  such  sum  as  may  be  neces 
sary  to  pay  the  said  certificates  of  indebtedness,  and  such  sum, 
when  collected,  shall  be  applied  to  the  payment  of  said  certificates. 

The  plaintiffs  repeatedly  demanded  that  defendant  should  rebuild 
the  docks  on  plaintiff's  land,  in  accordance  with  the  provisions  oi 
the  last  named  act.  The  defendant  and  its  common  council  failed 
and  refused  to  build  the  docks,  and  the  plaintiff  sued  for  damages 
on  account  of  such  failure. 

A  demurrer  was  interposed  to  the  complaint  therein  that  the 
complaint  did  not  state  facts  sufficient  to  constitute  a  cause  of 
action,  and  the  same  appeared  on  the  face  thereof.  An  order  was 
made  sustaining  the  demurrer,  from  which  plaintiff  appealed. 

Edgar  M.  Cullen,  for  the  appellant. 
Win.  C.  De  Witt,  for  the  respondents. 

GILBERT,  J. : 

The  liability  of  a  municipal  corporation  to  a  person  who  has 
sustained  damages  by  reason  of  a  negligent  omission  01  the  cor 
poration  to  perform  a  ministerial  duty  imposed  by  law  upon  it, 
cannot  be  doubted.  But  we  think  the  duty  of  repairing  the  docks 
of  the  Go  wan  us  canal  was  not  imposed  on  the  city  of  Brooklyn, 
but  on  the  common  council  of  that  city.  Such  is  the  language  oi 
the  statute.  (Laws  1871,  chap.  839.)  That  is  an  independent 
statute  and  forms  no  part  of  the  general  distribution  of  powers  or 
duties  among  the  different  branches  of  the  city  government.  Noi 


SAW-MILL  CO.  v.  CITY  OF  BROOKLYN.  39 

SECOND  DEPARTMENT,  JUNE  TERM,  1876. 

b  it  averred  that  the  corporation  has,  in  any  way,  assumed  the 
performance  of  the  duty  thereby  imposed.  The  name  of  the  cor- 
poration when  that  statute  was  passed  was,  and  still  is,  "  The  City 
of  Brooklyn."  If  the  legislature  had  intended  to  impose  the  duty 
upon  the  corporation  they  would  have  used  the  corporate  name 
The  common  council  are,  it  is  true,  the  agents  of  the  corporation. 
They  may,  nevertheless,  be  charged  by  the  legislature  with  the 
performance  of  public  duties  for  the  benefit  of  the  people  of  the 
State  which  do  not  pertain  exclusively  to  the  affairs  of  the  corpora- 
tion ;  and  in  such  a  case  they  should  be  treated  as  agents  of  the 
State  and  not  of  the  corporation.  As  a  corporation  can  act  only 
through  agents  duly  elected  or  appointed,  pursuant  to  the  Consti- 
tution and  the  act  of  incorporation,  the  legislature  may  prescribe 
the  powers  and  duties  of  such  agents  and  the  corporation  will  be 
Hable  for  their  acts  and  omissions  unless  exempted  from  such  lia- 
bility by  statute.  Although  their  authority  emanates  directly  from 
the  legislature  they  are  agents  of  the  corporation.  They  represent 
the  corporation,  and  powers  and  duties  with  which  they  may  be 
clothed  by  the  act  of  incorporation  are,  in  judgment  of  law,  cor- 
porate powers  and  duties.  That  is  the  principle  of  the  case  of 
Conrad  v.  Trustees  of  Ithaca,  referred  to  in  16  New  York,  158, 
and  other  kindred  cases. 

In  the  case  before  us,  however,  the  repairing  of  the  docks  in 
question  was  not  a  duty  imposed  on  the  corporation  by  the  charter 
thereof,  nor  was  it  enumerated  among  those  thereby  imposed  upon 
any  of  its  agents.  It  originated  in  the  act  of  1871.  Commissioners 
who  had  previously  been  intrusted  by  the  legislature  with  the 
building  of  the  docks  were  superseded  by  that  act,  and  the  common 
council  were  appointed  in  their  place  to  repair  the  same  docks 
which  had  sunk.  That  work  was  directed  to  be  done  merely  to 
perfect  the  improvement  undertaken  by  the  commissioners.  That 
improvement  was  strictly  a  local  one  for  the  benefit  of  adjoining 
proprietors.  A  construction  of  a  statute  which  imposes  on  the 
defendant  such  a  liability  as  is  claimed  in  this  case  ought  to  be  very 
palpable  before  it  is  adopted.  We  think  the  most  reasonable  con 
struction  is  that  the  duty  and  consequent  liability  were  imposed  on 
the  common  council,  as  commissioners  only,  and  not  as  agents  of 
the  corporation.  Upon  principle  therefore  as  well  as  upon  the 


40  MERR1TT  v.  VILLAGE  OF  PORTCHESTER. 

SECOND  DEPARTMENT,  JUNE  TERM,  1876. 

authority  of  the  cases  cited  below  we  think  the  corporation  is  not 
liable  for  their  acts  or  omissions  in  respect  to  the  duty  so  imposed. 
(Lorillard  v.  Tvwn  of  Monroe,  11  N.  Y.,  392,  and  cases  cited 
therein  ;  Russell  v.  The  Mayor,  2  Den.,  464: ;  Martin  v.  Brooklyn, 
1  Hill,  545 ;  King  v.  Same,  42  Barb.,  627 ;  see,  also,  Dillon  on  Mun. 
Cor.,  §§  772-778 ;  Maasmilian  v.  The  Mayor,  2  Hun,  263.) 

The  order  appealed  from  should  therefore  be  affirmed,  with  costs. 

BARNARD,  P.  J.,  concurred. 

Present  —  BARNARD,  P.  J.,  GILBERT  and  DYKMAN,  JJ. 

Order  sustaining  demurrer  affirmed  with  costs,  with  leave  to 
Amend. 


SARAH  MERRITT  AND  OTHERS,  APPELLANTS,  v.  THE  VIL- 
LAGE OF  PORTOHESTER  AND  JOHN  LEONARD, 
TBEASUBER  OF  THE  VILLAGE  OF  PORTCHESTER,  RESPONDENTS. 

Assessments  —  one  resolution  providing  for  two  —  Bids — time  of  opening — Notice  — 
publication  of — objections  —  chapter  818  of  1868 — chapter  245  of  1875 — regularity 
of  proceedings  under. 

The  board  of  trustees  of  the  village  of  Portchester  acted  upon  two  petitions,  one 
for  grading  Hanseco  and  the  other  for  grading  Irving  avenue.  There  was  but 
one  resolution  which,  though  it  embraced  both  streets,  yet,  in  legal  effect,  estab- 
lished separate  assessment  districts  for  each,  and  the  subsequent  proceedings 
were  conducted  thereunder.  Held,  that  the  proceedings  were  not  open  to  the 
objection  that  there  was  only  one  proceeding  for  the  grading  of  both  streets. 

A  requirement  in  a  charter  that  bids  shall  be  opened  on  the  day  mentioned  in  the 
notice  or  on  the  adjourned  day,  and  that  the  trustees  shall  "  then  "  determine 
whose  is  the  most  favorable,  does  not  restrict  them  to  an  instant  determination; 
they  have  all  the  time  requisite  for  a  correct  conclusion,  the  word  "  then  " 
being  used  in  the  sense  of  "  soon  afterward"  or  "  immediately.'" 

Where  a  charter  requires  the  trustees  to  determine  upon  and  fix,  but  specifies  no 
form  in  which  the  trustees  are  to  express  then*  decision  as  to  the  proper  com- 
pensation for  work  done,  a  confirmation  of  the  report  containing  the  charges 
for  expenses,  counsel  fees,  etc. ,  is  a  sufficient  compliance  with  the  provisions 
of  the  charter. 

A  statute  providing  that  before  completing  and  signing  the  report,  the  commis 
sioners  must  publish,  once  in  each  week  for  two  weeks  successively,  a  notice 
of  a  time  and  place,  when  and  where  the  parties  interested  can  be  heard,  held, 
to  mean  that  there  shall  be  two  publications,  one  in  one  week,  and  the  other 


MERRITT  v.  VILLAGE  OF  PORTCHESTER.  41 

SECOND  DEPARTMENT,  JUNE  TERM,  1876. 

in  the  next  week,  and  not  that  two  weeks  must  elapse  between  the  first  publi 
cation  and  the  day  designated  for  the  hearing. 

Held,  further,  that  a  notice  requiring  the  objections  to  be  in  writing  was  invalid, 
the  statute  conferring  no  authority  that  such  hearing  shall  be  restricted  to  writ 
ten  objections,  and  that  this  objection  by  the  plaintiffs  would  have  been  fatal 
to  the  proceedings  had  they  disregarded  the  notice.  But  having  appeared  before 
the  commissioners  pursuant  thereto  and  had  the  benefit  of  a  hearing  the}'  thereby 
waived  all  defects  therein. 

APPEAL  from  a  judgment  entered  in  favor  of  the  defendants  on 
a  decision  at  Special  Term,  in  an  action  brought  by  the  plaintiffs 
for  a  perpetual  injunction  restraining  the  defendants  forever  from 
selling,  offering  for  sale  or  making,  issuing  or  delivering  any  certifi- 
cate of  sale  or  lease  of  plaintiff's  land,  for  unpaid  assessments  for 
the  grading  of  a  street  in  the  village  of  Portchester.  The  village 
was  incorporated  under  a  special  act  passed  in  1868  (chap.  818). 
Proceedings  in  relation  to  regulating  and  grading  streets  arid 
assessments  therefor  are  provided  for  by  sections  22  to  28,  inclusive, 
of  title  5  of  said  act.  The  provisions  of  said  act  as  to  sales  for 
unpaid  assessments  were  amended  by  chapter  245  of  the  Laws  of 
1875. 

The  court  at  Special  Term  found,  among  other  things,  that  the 
plaintiffs  were  the  owners  of  the  land  described  in  the  complaint, 
the  defendant  The  Tillage  of  Portchester  a  municipal  corporation, 
and  the  defendant  John  Leonard  the  treasurer  thereof. 

That  the  defendant  The  Tillage  of  Portchester  instituted  proceed- 
ings, under  the  charter  of  said  village,  for  the  grading  of  Hanseco  and 
Irving  avenues  on  separate  petitions  as  to  each  avenue,  and  that 
they  fixed  in  one  resolution  the  assessment  districts  for  both  streets 
in  the  following  language :  "  The  assessment  districts  to  defray  the 
»xpense  of  said  grading  be  so  fixed  as  to  include  all  the  land  on 
both  sides  of  said  streets  (Hanseco  and  Irving  avenues)  to  a  depth 
not  exceeding  100  feet." 

That  Hanseco  and  Irving  avenues  are  not  parts  of  the  same  street, 
but  are  separate  streets  running  at  right  angles  to  each  other. 

That  the  board  of  trustees  of  the  defendant  caused  plain  and 
accurate  specifications  of  the  work  proposed  to  be  done,  uniting  in 
the  same  specifications  the  work  for  both  streets  but  making  a  dif- 
ferent plan  for  each,  and  deposited  the  same  with  the  village  clerk 

HUN— TOL.  Till.        6 


42  MERRITT  v.  VILLAGE  OF  PORTCHESTER. 

SECOND  DEPARTMENT,  JUNE  TERM,  1876. 

for  public  inspection,  and  gave  two  notices,  one  as  to  each  street, 
that  they  would,  on  the  22d  day  of  September,  1873,  act  in  rela- 
tion to  the  work  of  such  streets,  and  that  sealed  proposals  for  the 
work  would  be  received  by  the  clerk  until  that  date. 

That  the  bids  or  proposals  were  opened  on  the  22d  day  of 
September,  1873,  by  the  trustees,  read  and  referred  to  the  road 
committee,  and  thereupon  the  trustees'  meeting  adjourned  without 
any  further  action  to  the  24th  day  of  September,  1873,  on  which 
day  they  met,  received  and  adopted  the  report  of  the  road  commit- 
tee then  presented,  which  report  deemed  the  proposal  of  Robert  F. 
Brundage  the  most  favorable  for  grading  Hanseco  avenue,  and 
recommended  that  his  proposal  be  accepted,  which  was  the  only 
action  determining  whose  was  the  most  favorable  bid.  That, 
thereafter,  the  proceedings  for  grading  the  two  avenues  were  con- 
ducted separately  as  to  each,  and  separate  contracts  made  as  to  each, 
in  neither  of  which  contracts,  nor  in  the  proposals,  was  a  gross  sum 
named  as  the  price  for  doing  the  work,  but  the  contract  provided 
for  doing  the  work  at  a  sum  per  yard  and  per  foot ;  some  of  the 
work  to  be  done  by  the  foot  and  some  by  the  yard. 

The  commissioners  of  estimate  and  assessment  severally  took, 
subscribed  and  filed  an  oath  in  writing,  "each  for  himself,  that 
we  will  support  the  Constitution  of  the  United  States,  the  Consti- 
tution of  the  State  of  New  York,  and  will  perform  the  duty  of 
commissioner  of  estimate  and  assessment  for  the  grading  of  Hanseco 
avenue,  in  the  village  of  Portchester,  to  the  best  of  his  ability ; " 
and  gave  notice  that  the  commissioners  would  meet  in  said  village 
on  November  7th,  1873,  from  two  to  five  p.  M.,  to  receive  any 
written  objections  that  may  be  offered  to  and  left  with  them 
by  any  of  the  parties  interested ;  which  notice  was  not  dated  and 
which  notice  was  published  once  in  each  week  for  two  weeks 
successively,  commencing  on  the  30th  day  of  October,  1873.  That 
the  plaintiffs,  by  John  Lyon  their  agent,  appeared  before  the  com- 
missioners and  filed  with  them  written  objections,  which  were 
returned  with  their  report  to  the  board  of  trustees.  The  trustees 
did  not  confirm  the  same  but  sent  the  report  back  to  the  said  com- 
missioners that  they  might  correct  and  readvertise  the  same. 

The  commissioners  made  up  a  second  report  and  gave  notice 
that  all  persons  feeling  themselves  aggrieved  must  present  their 


MERRITT  v.  VILLAGE  OF  PORTCHESTER.  43 

SECOND  DEPARTMENT,  JUNE  TERM,  1876. 

objections  in  writing.  Objections  in  writing  were  presented  to 
said  commissioners  signed  by  five  persons,  including  the  three 
plaintiffs,  which  objections  were  annexed  to  the  report  and  the 
report  was  then  signed  by  said  commissioners  and  returned  to  the 
board  of  trustees,  who  did  not  confirm  the  same  but  sent  the  same 
back  to  said  commissioners  to  be  reviewed  by  them  and  corrected 
according  to  law. 

The  commissioners  made  up  a  third  report  and  gave  a  notice 
similar  to  that  for  the  second  report.  No  objections  on  the  part 
of  the  plaintiffs  were  made  in  writing  under  such  notice,  but  there 
were  objections  by  other  persons.  Said  third  report  was  by  said 
commissioners  returned  to  the  said  board  of  trustees,  who  did  not 
confirm  the  same  but  sent  the  same  back  to  the  said  commissioners. 

The  commissioners  made  up  a  fourth  report  arid  before  signing 
the  same  caused  a  notice,  dated  February  25th,  1874,  to  be  pub- 
lished in  the  village  newspaper :  "  That  the  commissioners  of 
estimate  and  assessment  for  the  grading  of  Hanseco  avenue  in  the 
village  of  Portchester  have  completed  their  report  and  filed  the 
same  with  the  village  clerk,  in  all  respects  according  to  law,  where 
the  same  could  be  seen  and  examined  by  all  persons  interested 
until  March  6th,  1874.  Notice  is  further  given  that  said  commis- 
sioners will  meet  at  the  corporation  rooms  March  6th,  1874,  from 
one  to  four  p.  M.,  and  all  persons  feeling  themselves  aggrieved  must 
present  their  objections  in  writing  to  the  same ;  "  which  notice  was 
published  once  in  each  week  for  two  weeks  successively,  commenc- 
ing on  26th  of  February,  1874.  No  objections  in  writing  to  said 
fourth  report  were  received  or  presented  to  the  said  commissioners 
The  said  fourth  report  was  presented  to  said  board  of  trustees  who 
on  the  9th  day  of  March,  1874,  confirmed  the  same. 

ND  resolution  was  passed  or  adopted  by  said  trustees  till  April 
20th,  1874,  in  terms  fixing  or  auditing  any  of  the  items  of  expense 
mentioned  in  said  report  other  than  the  resolution  adopted  March 
9th,  1874,  simply  confirming  the  report. 

Ralph  E.  Prime,  for  the  appellants. 
Amherst  Wight,  Jr.,  for  the  respondents 


44  MERRITT  u.  VILLAGE  OF  PORTCHESTER. 

SECOND  DEPARTMENT,  JOKE  TERM,  1876. 

GILBERT,  J. : 

We  have  examined  the  proceedings  presented  for  review  in  thii 
case,  and  have  come  to  the  following  conclusions  : 

1.  The  objection  that  there  was  only  one  proceeding  for  the 
grading  of  both  streets  is  not  correct  in  point  of  fact.     The  board 
of  trustees  acted  upon  two  petitions,  one  for  Hanseco  and  the  other 
for  Irving  avenue.     The  resolution  fixing  the  assessment  districts, 
though  it  embraced  both  streets,  yet  in  legal  effect  established  sepa- 
rate districts  for  each  of  them,  and  the  subsequent  proceedings  were 
conducted  accordingly. 

2.  We  think  the  construction  of  section  23  of  title  5  of  the  char- 
ter, urged  on  behalf  of  the  plaintiffs,  is  too  technical.     The  require- 
ment that  the  bids  shall  be  opened  on  the  day  mentioned  in  the 
notice,  or  on  the  adjourned  day,  and  that  the  trustees  shall  "  then  " 
determine  whose  is  the  most  favorable,  does  not  restrict  them  to  an 
instant  determination.     They  must  have  time,  and  all  the  time 
requisite  for  a  correct  conclusion.     Hence  the  word  "  then,"  evi- 
dently, was  used  in  the  sense  of  "  soon  afterward  "  or  "  immedi- 
ately."    Certainly  the  legislature  did  not  intend  that  the  trustees 
should  act  upon  the  proposals  without  having  duly  considered  them. 

3.  The  statute  does  not  require  that  the  proposal  shall  be  to  do 
the  work  for  a  specified  sum,  nor  could  they  ordinarily  be  properly 
put  in  that  form.     The  sureties  are  to  become  bound  for  the  doing 
the  work  at  the  price  and  upon  the  terms  proposed.     But  that  does 
not  imply  that  the  bids  shall  be  in  one  form  or  the  other.     We 
think  that  either  form  is  a  sufficient  compliance  with  the  statute. 

4.  There  was  no  substantial  variance  in  the  oath  taken  by  the 
commissioners  of  assessment,  from  that  prescribed  by  the  statute. 

5.  We  think  the  cost  of  the  work  was  properly  ascertained.     The 
trustees  acted  on  the  statement  of  their  engineer,  and  nothing  has 
been  shown  to  impeach  the  accuracy  thereof.     The  slight  discrep- 
ancy of  fifty  cents  between  the  first  and  fourth  report  cannot  be  so 
regarded. 

6.  The  confirmation  of   the  report  containing  the  charges  for 
expenses,  counsel  fees,  etc.,  was  a  sufficient  compliance  with  the 
provision  of  the  charter  requiring  the  trustees  td  determine  upon 
and  fix  the  compensation  for  those  objects.     They  could  not  con- 
firm the  report  without  approving  those  charges,  and  the  chartei 


MERRITT  v.  VILLAGE  OF  PORTCHESTER.  45 

SECOND  DEPARTMENT,  JUNE  TERM,  1876. 

specifies  no  form  of  expressing  their  determination  of  the  compen- 
sation therefor.  One  mode,  therefore,  is  as  good  as  another,  pro- 
vided it  shows  an  actual  determination  of  the  trustees. 

7.  The  notice  of  hearing  upon  the  report  of  the  assessment  was 
published  twice  in  successive  weeks.  That  seems  to  be  a  compli- 
ance with  the  peculiar  phraseology  of  the  statute,  which  requires 
that  the  notice  shall  be  published  once  in  each  week  for  two  weeks 
successively.  This  we  think  means  that  there  shall  be  two  publi- 
cations —  one  in  one  week  and  the  other  in  the  next  week  —  and 
not  that  two  weeks  must  elapse  between  the  first  publication  and 
the  day  designated  for  the  hearing.  Such  has  been  the  later  con- 
struction of  similar  statutes  (Chamberlain  v.  Dempsey,  22  How., 
356  ;  Sheldon  v.  Wright,  5  K  Y.,  497 ;  Olcott  v.  Robinson,  21  id., 
150  ;  Wood  v.  Morehouse,  45  id.,  368),  and  the  language  of  the 
statute  under  consideration  rather  repels  the  idea  of  a  notice  oi 
two  weeks  to  the  persons  interested,  by  providing  that  it  shall  be 
given  to  the  newspaper  and  published  only  twice.  The  objection 
to  the  sufficiency  of  the  notice  itself,  however,  seerns  to  us  to  be  a 
good  one.  The  statute  requires  a  notice  of  the  time  and  place  when 
and  where  the  parties  interested  can  be  heard.  The  commissioners 
are  to  complete  their  report  after  that  time.  The  plain  object  of 
these  provisions  is  to  afford  an  opportunity  for  a  hearing  before  the 
commissioners,  and  the  benefit  of  subsequent  action  thereupon  by 
them,  and  the  statute  confers  no  authority  upon  them  to  require 
that  such  hearing  shall  be  restricted  to  written  objections.  The 
subsequent  provision  that  the  commissioners  shall  return  their 
report,  "  with  all  the  objections  in  writing,"  does  not  warrant  the 
inference  that  the  commissioners  themselves  could  properly  hear 
and  consider  only  written  objections.  Parties  who  desired  a  second 
consideration  of  their  objections  by  the  trustees  might  very  properly 
be  required  to  reduce  them  to  writing,  while  no  occasion  for  the 
observance  of  such  a  form  would  exist  at  the  first  hearing  before 
the  commissioners.  In  either  case  it  would  be  a  hearing  within 
the  legal  signification  of  that  term,  which  simply  means  the  receir 
ing  of  facts  and  argument  thereon  for  the  sake  of  deciding  cor- 
rectly. Still  statutes,  whereby  a  man's  property  is  taken  away  or 
burdened  with  charges  upon  it,  must  be  strictly  pursued.  We 
think  that  was  not  done  in  this  particular,  and  the  omission  may 


46  HOTCHKISS  v.  PLATT. 

SECOND  DEPARTMENT,  JUNE  TERM,  1876. 

have  deterred  the  persons  interested  from  making  an  oral  statement 
of  their  objections,  and  so  deprived  them  of  a  substantial  right. 
This  objection  would  have  been  a  fatal  one,  if  the  plaintiffs  had 
disregarded  the  notice.  But  having  appeared  before  the  commis- 
sioners pursuant  thereto,  and  had  the  benefit  of  a  hearing,  they 
thereby  waived  all  defects  therein.  (Buel  v.  Trustees  of  Lockport, 
3  Comst.,  197 ;  People  v.  Quigg,  59  N.  Y.,  89,  and  cases  cited.) 

8.  By  section  13  of  title  7  of  the  charter,  it  was  made  the  duty 
of  the  trustees  to  issue  the  warrant  for  the  collection  of  the  assess- 
ment. That  was  done,  and  the  sale  was  made  after  the  return  of 
the  warrant.  The  objection  on  this  ground,  therefore,  is  unfounded. 

The  result  is  that  the  judgment  must  be  affirmed,  with  costs. 

BARNARD,  P.  J.,  concurred. 

Present  —  BARNARD,  P.  J.,  GILBERT  and  DYKMAN,  JJ. 

Judgment  affirmed,  with  costs  and  disbursements. 


FREDERICK  W.  HOTCHKISS,  APPELLANT,  v.  JOHN  H. 
PLATT,  ASSIGNEE  IN  BANKRUPTCY  OF  CLEMENTINA 
T.  RICHARDSON,  BANKRUPT,  IMPLEADED  WITH  OTHERS, 
RESPONDENT. 

Injunction  —  damages  caused  by  —  what  allowable  as  —  Bad  management  of  receiver  — 
Counsel  fee  —  Injury  to  business. 

In  proceedings  to  ascertain  the  damage  resulting  from  the  granting  of  an  injunc- 
tion, damages  directly  caused  by  the  act  of  divesting  the  enjoined  party  of  his 
property  and  putting  it  in  the  hands  of  a  receiver  are  allowable,  but  not  such 
as  flow  from  the  bad  management  of  the  receiver  afterwards. 

Counsel  fees  on  the  trial  of  the  action  in  which  the  injunction  was  granted  are 
not  allowable  as  damages,  without  evidence  that  the  expense  of  the  trial  was 
increased  by  the  injunction. 

4n  allowance  made  by  the  court  to  the  receiver  in  managing  the  property  is  not 
allowable  as  damages,  when  the  sum  so  paid  is  no  greater  than  the  defendant, 
who  did  not  manage  the  property  before  the  receivership,  but  employed  another 
person  tc  do  it,  would  have  paid  for  similar  services  if  no  receiver  had  been 
appointed. 

Any  loss  of  property  or  diminution  of  profits  occurring  in  consequence  of  the 
change  in  the  custody  and  control  of  defendant's  goods  or  stoppage  of  defend 
ant'fl  business  is  allowable. 


HOTCHKISS  v.  PLATT.  47 

SECOND  DEPARTMENT,  «UNE  TEKM,  1876. 

APPEAL  from  an  order  made  at  Special  Term,  confirming  th« 
report  of  a  referee  appointed  to  ascertain  the  damages  sustained  by 
the  defendant  Richardson,  by  reason  of  an  order  of  injunction 
granted  in  said  action. 

In  January,  1871,  the  plaintiff  brought  an  action  against  Clem- 
entina T.  Kichardson  and  others,  the  said  Clementina  then  carrying 
jn  the  business  of  selling  carpets  and  furniture  at  the  corner  of 
Hudson  and  Canal  streets,  New  York  city,  and  on  the  2d  day 
of  February,  1871,  an  order  was  obtained  in  the  action  appointing 
a  receiver  of  the  property,  the  order  containing  an  injunction 
against  the  said  Clementina  and  others,  forbidding  them  to  inter- 
fere or  dispose  of  their  property.  This  injunction  continued  until 
February  1,  1872,  when  judgment  was  entered  dismissing  the  com- 
plaint, which  judgment  was  affirmed  at  General  Term,  October  31, 
1873,  and  on  the  25th  day  of  January,  1875,  a  reference  was  ordered 
to  ascertain  the  damages  sustained  by  reason  of  the  injunction. 
The  injunction  stopped  collections  and  payments  and  forced  Clem- 
entina T.  Richardson  into  bankruptcy.  The  undertaking  on  the 
injunction  was  not  signed  by  the  plaintiff  bat  by  John  Q.  Clark 
and  Frederick  S.  Wells,  as  obligors,  and  the  receiver  filed  a  sepa- 
rate bond  as  such.  The  referee  did  not  allow  damages  for  the 
bankruptcy.  He  allowed : 

First,  $2,400  for  part  of  the  expense  of  the  receivership. 

Second,  $350  for  counsel  fees  on  the  trial  of  the  action. 

Third,  $350  to  each  of  two  counsel,  or  $700  counsel  fees  on  the 
reference. 

Fourth,  $300  referee's  fees. 

Fifth,  $2,882.25,  the  amount  of  the  assets  of  said  defendant  Clem- 
entina T.  Richardson,  lost  by  reason  ot  the  inability  of  the  receiver 
and  his  failure  to  collect  the  same,  and  which  failure  was  occasioned 
by  the  inability  of  the  defendant  to  conduct  her  own  business  by 
reason  of  the  injunction  therein. 

Making  a  total  of  $6,632.25,  from  all  of  which  allowances,  except- 
ing the  referee's  fees,  the  obligors  in  the  undertaking  on  the 
injunction  appealed. 

Thomas  H.  Hubbard,  for  the  appellant. 

Austin  G.  Fox  and  Waldo  Hutchins,  for  the  respondent. 


48  HOTCHKISS  v.  PLATT. 

SECOND  DEPARTMENT,  JOKE  TERM,  1876. 

GILBERT,  J.  I 

The  damages  to  which  a  party  who  has  been  injured  by  the 
grunting  of  an  injunction,  is  entitled,  are  only  such  as  have 
resulted  directly  from  the  injunction.  (2  Wait's  Pr.,  124.)  Remote 
damages  are  excluded  by  the  very  terms  of  the  undertaking,  which 
are  that  the  plaintiff  will  pay  to  the  defendant  "  such  damages  as 
he  may  sustain  by  reason  of  the  said  injunction,"  and  also  by  the 
general  rules  of  law  governing  the  assessment  of  damages  in  anal- 
ogous cases. 

In  this  case  the  injunction  is  contained  in  the  order  appointing 
the  receiver,  which  is  dated  February  2d,  1871.  No  motion  to 
vacate  it  appears  to  have  been  made,  but  the  order  mentioned 
required  the  defendants  to  show  cause  on  a  day  specified  therein, 
why  the  receivership  and  the  injunction  should  not  be  continued. 
Nothing  seems  to  have  been  done  under  this  branch  of  the  order. 
On  the  18th  of  February,  1871,  the  action  was  referred,  by  mutual 
consent,  to  a  referee,  to  hear  and  determine  the  same.  The  receiver 
took  possession  on  the  same  day  he  was  appointed,  viz. :  February 
2d,  1871,  and  such  receivership  continued  until  the  termination  of 
the  action. 

The  receivers  that  were  successively  appointed  gave  bonds  for 
the  faithful  discharge  of  their  duties.  It  cannot  be  claimed,  we 
think,  that  damages,  sustained  in.  consequence  of  the  negligence  01 
want  of  fidelity  of  the  receivers  are  allowable,  for  the  reason  that 
they  are  not,  in  any  sense,  attributable  to  the  injunction,  and  the 
further  reason  that  other  security  was  taken  therefor.  The  damages 
directly  caused  by  the  act  of  divesting  the  defendant  of  her  property 
and  putting  it  in  the  hands  of  a  receiver  may  be  allowed,  but  not 
such  as  flowed  from  the  bad  management  of  the  receivers  afterward. 

Applying  these  principles,  we  will  now  look  at  the  report  of  the 
referee  in  detail. 

1.  The  allowance  of  part  of  the  counsel  fees  incurred  in  the  trial 
of  the  action,  was  improper.  There  is  no  evidence  that  the  expense 
of  the  trial  was,  in  any  manner,  increased  by  the  injunction,  and 
without  snch  evidence  they  were  not  allowable.    (Hovey  v.  Rubber 
Tip  Co.,  12  Abb.  [N.  S.],  360 ;  8.  0.,  50  N.  Y.,  335 ;  Allen  v. 
Broijon,  5  Lans.,  514.) 

2.  The  item  of  $2,400,  awarded  by  the    court  to  the  receivei 


HOTCHKISS  v.  PLATT.  49 

SECOND  DEPARTMENT,  JUNE  TEKM,  1876. 

Andrews,  was,  I  think,  improperly  allowed.  That  expense  was 
incurred  for  services  rendered  in  the  preservation  and  management 
of  the  property,  and,  as  the  evidence  shows,  amounts  to  a  less  sum 
than  the  defendant  would  have  paid  for  similar  services  if  no 
receiver  had  been  appointed.  The  defendant  did  not  manage  the 
business  herself  before  the  receivership,  but  employed  another  per- 
son to  do  it  for  her.  Payments  made  to  the  receiver  instead  of 
the  defendant's  employe,  if  they  did  not  subject  her  to  increased 
expense,  certainly  do  not  constitute  damages  caused  by  the  injunc- 
tion. If  such  employe  had  been  the  receiver  no  one  would  con- 
tend that  payments  to  him  for  his  services  in  taking  care  of  the 
property  and  conducting  the  business,  not  in  excess  of  the  compen- 
sation which  the  defendant  had  agreed  to  pay  him  would  be  an  ele- 
ment of  damages,  and  we  think  the  employment  of  another  person 
to  do  the  same  service  does  not  warrant  the  application  of  a  differ- 
ent rule.  If  any  loss  of  property  or  diminution  of  profits  has 
occurred  in  consequence  of  the  change  in  the  custody  and  control  of 
the  defendant's  goods  or  effects,  or  the  stoppage  of  her  business,  either 
would  form  a  proper  element  of  damages,  but  not  mere  expenses 
which  she  must  have  incurred  if  no  such  change  had  been  ordered. 

3.  The  referee  has  found  that  a  loss  of  property  occurred  in  con- 
sequence of  the  injunction,  amounting  to  $2,882.25.     There  is  evi- 
dence to  support  this  finding,  and  we  are  not  disposed  to  weigh  it 
in  nice  balances  for  the  purpose  of  relieving  parties  who   have 
become  liable  for  the  consequences  of  an  illegal  interference  \rith 
the  property  of  another.     That  item,  therefore,  will  be  allowed. 

4.  Only  one  counsel  fee  can  be  allowed  for  services  on  the  refer- 
ence to  ascertain  the  damages.     A  party  cannot  lay  the  foundation 
of  a  claim  for  damages  by  employing  a  greater  number  of  counsel 
than  was  necessary.    (Collins  v.  Sinclair,  51  HI.,  328.)     The  allow 
ance  is  too  large  for  one  counsel,  and  nothing  appears  justifying 
the  inference  that  more  than  one  was  necessary. 

The  order  appealed  from  must  be  modified  so  as  to  reduce  the 
amount  allowed  for  damages  to  $3,532.25,  and  as  so  modified  it  is 
affirmed,  without  costs  to  either  party. 

BAENAKD,  P.  J.,  and  DYKMAN,  J.,  concurred. 

Order  modified  in  accordance  with  opinion  of  Justice  GILBBBT. 
HUN  — VOL.  VTTI.         7 


50  SKIDMORE  v.  COLLIER. 

SECOND  DEPARTMENT,  JUNE  TERM,  1876. 


FRANCES   C.  SKIDMORE,   ADMINISTRATRIX,   RESPONDENT,  v. 
CATHARINE   N.  COLLIER,   ADMINISTRATRIX,   IMPLEADED 

WITH    OTHERS,    APPELLANT. 

Partnership  accounting  —  Surviving  partner — Different  causes  of  action  —  Joinder 
of  administrator  and  heirs. 

In  an  action  by  the  administratrix  of  A.  against  the  administratrix  of  B.  for  an 
accounting  in  respect  to  a  partnership  existing  between  A.,  B.  and  C.,  alleging 
that  after  the  death  of  A.  the  partnership  was  continued  by  B.  and  C.,  as  sur- 
viving partners,  for  a  short  period,  when  B.  purchased  the  interest  of  C.  with 
partnership  effects,  and  thereafter  continued  the  business  as  sole  surviving 
partner  until  his  death;  and  that  after  the  death  of  B.,  his  widow  and  adminis- 
tratrix, the  defendant  (who  had  since  married  one  Collier)  carried  on  the  same 
business  with  the  partnership  capital  and  effects,  and  that  no  accounting  of  the 
interests  of  A.  had  ever  been  rendered  to  the  plaintiff,  who  was  his  widow  and 
administratrix;  that  the  other  defendants  were  the  children  of  B.  and  made 
defendants  on  the  ground  of  a  partial  distribution  of  their  father's  estate  to 
them;  and  that  some  of  the  real  estate  which  descended  to  them,  as  heirs  of 
their  father,  was  in  fact  purchased  with  the  funds  of  the  partnership  aforesaid, 
and  so  constituted  a  part  of  the  assets  thereof:  on  demurrer  to  the  complaint 
by  the  defendant  Collier,  administratrix,  interposed  on  the  ground  that  the 
facts  stated  in  the  first  cause  of  action  did  not  constitute  a  cause  of  action 
against  her,  and  that  several  causes  of  action  had  been  improperly  united  in  the 
complaint: 

Held,  that  the  facts  stated  made  out  a  case  within  the  equitable  jurisdiction  of 
the  court. 

That  a  surviving  partner,  though  he  has  a  legal  right  to  the  partnership  effects, 
yet,  in  equity,  is  considered  a  trustee  to  pay  the  debts  and  dispose  of  the  effects 
for  the  benefit  of  himself,  and  the  estate  of  his  deceased  partner 

That  the  capital  of  the  deceased  partner  is  to  be  treated  as  trust  property;  and 
when  it  has  been  employed  in  carrying  on  the  business  of  the  concern,  so  much 
of  the  subsequent  profits  as  can  be  attributed  to  the  employment  of  such  capital 
must  be  accounted  for  by  those  who  have  used  it;  and  on  this  principle  the 
defendant  Collier  was  liable,  as  administratrix,  to  account  for  the  quasi  breach 
of  trust  of  B.,  her  intestate,  and  hence  a  cause  of  action  was  correctly  stated 
against  her. 

That  there  was  really  but  one  cause  of  action  set  out  in  the  complaint,  namely, 
the  right  to  an  accounting  concerning  the  affairs  of  the  partnership  mentioned; 
and  no  distinct  cause  of  action  set  forth  against  the  defendants  other  than 
Collier,  the  administratrix;  but  in  such  an  action  it  was  proper  to  make  all 
persons  parties  who  were  interested  in  the  subject-matter  of  the  accounting, 
although  the  interests  of  the  several  defendants  did  not  accrue  in  the  same  right 


SKIDMORE  v.  COLLIER.  51 

SECOND  DEPABTMENT,  JUNE  TEHM,  1876. 

APPEAL  from  an  order  made  at  Special  Term,  overruling  a 
demurrer  to  the  complaint. 

The  action  was  brought  June  12,  1875,  by  plaintiff  as  adminis- 
tratrix of  William  D.  Skidmore,  deceased,  against  the  defendant 
Collier  as  administratrix  of  Henry  Skidmore,  deceased,  together 
with  the  next  of  kin  and  heirs  at  law  of  said  Henry  Skidmore, 
alleging  a  partnership  between  their  respective  intestates,  and 
demanding  an  accounting,  etc. 

The  amended  complaint  alleged  that,  about  1859,  said  Henry 
Skidmore  and  William  D.  Skidmore,  together  with  one  Frank 
Bush,  formed  a  partnership  for  the  purpose  of  printing  and  bronz- 
ing tinfoil. 

This  partnership  was  to  continue,  so  far  as  Bush  was  concerned, 
fourteen  years,  but,  as  between  the  Skidmores,  it  was  to  continue 
indefinitely  ;  i.  e.,  it  was  terminable  at  will,  and,  of  course,  by  the 
death  of  either  partner. 

Each  partner  was  to  share  equally  in  the  profits,  losses  and  prop- 
erty of  the  firm. 

Bush  furnished  all  the  money,  and  the  Skidmores  furnished  an 
invention  for  printing  and  bronzing  tinfoil,  a  patent  for  which  was 
to  be  applied  for. 

This  partnership  continued  until  the  death  of  plaintiff's  intes- 
tate, William  D.  Skidmore,  April  11,  1862,  at  which  time  his 
interest  in  the  business  was  worth  about  $20,000,  and  bis  interest 
in  the  stock,  etc.,  about  $3,000. 

Plaintiff  was  appointed  administratrix  of  the  goods,  etc.,  of 
William  D.  Skidmore,  on  July  2,  1862. 

After  the  death  of  William  D.  Skidmore,  Henry  Skidmore  con- 
tinued to  carry  on  the  business  with  the  firm  assets  until  his  death 
in  1873  ;  although  he  had,  in  1864,  with  the  firm  assets,  bought  out 
Bush's  interest  in  the  firm,  after  which  time  all  the  firm  assets 
became  the  property  of  said  Henry  Skidmore,  as  surviving  partner, 
"  for  the  benefit  of  himself  and  this  plaintiff  as  administratrix,"  etc. 

Up  to  the  time  of  Henry  Skidmore's  death,  he  received  the 
moneys,  and  paid  the  debts  and  liabilities  of  the  firm. 

With  the  proceeds  of  this  business,  Henry  Skidmore  obtained 
from  the  United  States  government  certain  patent  rights,  and  also 
purchased  certain  real  estate  in  his  own  name. 


52  SKIDMORE  v.  COLLIER. 

SECOND  DEPAHTMENT,  JUNE  TERM,  1876. 

Henry  Skidinore  died  intestate,  May  19,  1873,  possessed  of  all 
the  property,  etc.,  of  the  firm,  and  leaving  his  widow  the  defend- 
ant, since  married  to  one  Collier,  and  the  other  defendants,  his 
children,  only  next  of  kin  and  heirs  at  law. 

June  9,  1873,  the  defendant  Collier  "  was  duly  appointed  admin- 
istratrix" of  the  goods,  etc.,  of  Henry  Skidmore,  and,  as  such, 
took  possession  of  all  the  property,  etc.,  of  Henry  Skidm.-e,  "  by 
him  derived  from  the  aforesaid  copartnership  business  as  such  sole 
surviving  partner." 

Since  the  death  of  W.  D.  Skidmore,  the  plaintiff  had  not  received, 
from  either  Henry  Skidinore  or  the  defendant  Collier,  any  of  the 
moneys,  etc.,  of  said  business,  except  that  Henry  Skidmore,  during 
his  life,  paid  her  about  forty  dollars  per  month  ;  but  neither  said 
Henry  Skidmore,  nor  the  defendant  Collier,  as  his  administratrix, 
have  ever  accounted  to  plaintiff. 

On  or  about  April  19,  1875,  the  defendant  Collier,  "as  such 
administratrix,  in  pursuance  of  a  decree  of  the  surrogate  of  the 
county  of  Westchester,  paid  over  the  assets  of  the  estate  of  the 
said  Henry  Skidmore,  including  the  said  copartnership  property 
of  which  he  died  possessed  as  aforesaid,"  to  the  defendants,  and 
"  the  sums  hereafter  to  come  into  the  hands  of  the  said  defendant, 
Catharine  N.  Collier,  as  such  administratrix,"  would  not  be  sufficient 
to  satisfy  plaintiff's  claim,  without  resorting  to  the  moneys  already 
distributed  as  aforesaid. 

The  plaintiff,  as  such  administratrix,  since  December  1,  1874, 
and  before  the  commencement  of  this  action,  demanded  of  the 
defendant  Collier,  as  such  administratrix,  an  accounting. 

There  was  no  allegation  that  any  more  or  further  assets  could 
possibly  come  into  the  hands  of  the  appellant,  as  adminis 
tratrix. 

The  second  cause  of  action  "  repeats  and  renews  the  allegations 
set  forth  under  the  head  of  the  first  cause  of  action,"  and  alleges 
that  the  defendant  Collier,  after  the  death  of  Henry  Skidmore,  "  as 
his  administratrix  took  possession,"  of  all  the  property  of  said 
firm,  "and  as  such  administratrix  continued  to  carry  on  said 
business,"  disposed  of  the  patent  rights,  etc.,  and  has  never 
accounted. 

It  also  alleges  that  the  defendant  Collier,  as  such  administratrix 


SKIDMORE  v.  COLLIER.  53 

SECOND  DEPARTMENT,  JUNE  TERM,  1876. 

"  in  pursuance  of  the  decree  of  the  surrogate  of  Westchester 
county,  hereinbefore  referred  to,  distributed,  as  part  of  the  assets 
of  said  estate  of  Henry  Skidrnore,  deceased,"  the  firm  assets ;  and 
has  not  funds  to  pay  plaintiffs  claim,  "  without  resorting  to  the 
moneys  so  distributed  to  the  other  defendants,"  and  again  alleges 
a  demand  for  an  accounting,  a  refusal,  etc. 

The  defendant  Collier  demurred  to  the  first  cause  of  action  upon 
the  ground,  that  the  facts  therein  stated  did  not  constitute  a  cause 
of  action  against  her. 

She  also  demurred  to  the  whole  amended  complaint  upon  the 
ground  "  that  several  causes  of  action  had  been  improperly  united 
in  said  amended  complaint." 

C.  G.  Prentiss,  for  the  appellant. 
R.  Me  K.  Sunsby,  for  the  respondent. 

GILBERT,  J. : 

There  is  really  but  one  cause  of  action  set  forth  in  the  complaint. 
The  object  of  the  suit  is  to  obtain  an  accounting  in  respect  to  a 
partnership  formerly  existing  between  William  D.  and  Henry 
Skidmore  and  one  Bush,  upon  the  allegation  that  after  the  death 
of  William  the  partnership  business  was  continued  by  Henry  and 
Bush  as  surviving  partners,  for  a  short  period,  when  Henry  pur- 
chased the  interest  of  Bush,  and  thereafter  carried  on  the  business 
as  sole  surviving  partner  until  his  death,  and  that  after  the  death 
of  Henry,  his  widow  and  administratrix,  who  has  since  married  Mr. 
Collier,  carried  on  the  same  business,  with  the  partnership  capital 
and  effects,  and  that  no  accounting  of  the  interest  of  William  has 
ever  been  rendered  to  the  plaintiff,  who  is  his  widow  and  adminis- 
tratrix. 

The  first  count  is  confined  to  the  business  done  during  the  life 
of  Henry,  while  the  second  includes  that  and  also  the  business  car- 
ried on  after  the  death  of  Henry  by  his  administratrix,  Mrs.  Collier. 
The  other  defendants  are  the  children  of  said  Henry,  and  his  next 
of  kin  and  heirs  at  law.  They  are  made  parties  upon  the  allegation 
that  their  co-defendant  has  made  a  partial  distribution  of  the  assets 
of  their  father's  estate  to  them  as  his  next  of  kin,  and  that  in  thai 


54  SKIDMORE  v.  COLLIER. 

SECOND  DEPARTMENT,  JUNE  TERM,  1876. 

way  they  received  moneys  which  belong  to  the  plaintiff  as  adminis- 
tratrix of  William  D.  Skidmore,  and  upon  the  further  allegation 
that  some  of  the  real  estate  which  descended  to  them  as  heirs  of 
their  father,  was  in  fact  purchased  with  the  funds  of  the  partnership 
aforesaid,  and  so  constitutes  a  part  of  the  effects  thereof. 

We  repeat,  these  facts  constitute  only  one  cause  of  action,  namely 
the  right  to  an  accounting  concerning  the  affairs  of  the  partnership 
mentioned.  In  such  an  action  it  is  proper  to  make  all  persons  par- 
ties \vho  are  interested  in  the  subject-matter  of  the  accounting.  It 
matters  riot  that  the  interests  of  the  several  defendants  did  not 
accrue  in  the  same  right.  All  persons  should  be  joined  whose 
interests  are  involved  in  the  accounting  sought,  howsoever  such 
interests  may  have  arisen,  as  for  instance  heirs  and  personal  repre- 
sentatives, residuary  legatees  and  distributees,  mortgagors  and  mort- 
gagees and  their  assignees.  (Story  Eq.  PI.,  §  319.)  Such  is  the 
rule  prescribed  by  the  Code  (§§  118, 119;  Richtmyerv.  Richtmy&r, 
50  Barb.  55 ;  1  Wait's  Pr.  13T.) 

The  facts  stated  in  the  complaint  clearly  make  out  a  case  within 
the  equitable  jurisdiction  of  the  court.  A  surviving  partner,  though 
he  has  a  legal  right  to  the  partnership  effects,  yet  in  equity  is  con- 
sidered merely  as  the  trustee  to  pay  the  partnership  debts,  and  to 
dispose  of  the  effects  of  the  concern  for  the  benefit  of  himself  and 
the  estate  of  his  deceased  partner.  It  is  the  duty  of  the  surviving 
partner  to  wind  up  the  affairs  of  the  partnership,  and  to  account  for, 
and  pay  over  to  the  personal  representative  of  the  deceased  partner 
his  share  of  the  partnership  effects.  If  he  has  continued  the  part- 
nership business  with  the  partnership  funds,  he  is,  as  a  general  rule, 
liable  to  account  for  all  profits  made  thereby,  and  the  losses,  if  any, 
must  be  borne  by  himself.  The  capital  of  the  deceased  partner  will 
be  treated  as  trust  property,  and  when  it  has  been  employed  in 
carrying  on  the  business  of  the  concern,  so  much  of  the  subsequent 
profits  as  can  be  attributed  to  the  employment  of  the  capital  must 
be  accounted  for  by  those  who  have  used  it.  (Lindley  Part.,  830, 
et  aeq. ;  Story  Part.,  §§  343,  346 ;  Willard  Eq.  [Potter's  ed.]  708 ; 
Case  v.  Abeel,  1  Paige,  398.)  This  principle  renders  the  defendant 
administratrix  liable  to  account  for  the  quasi  breach  of  trust  com- 
mitted by  the  intestate,  Henry  Skidmore.  That  is  sufficient  to 
dispose  of  the  first  ground  of  demurrer.  She  is  also  charged  with 


SKIDMORE  v.  COLLIER.  55 

SECOND  DEPARTMENT,  JUNE  TERM,  1876. 

a  like  liability  as  administratrix,  arising  out  of  her  carrying  on  said 
business  after  the  death  of  said  intestate.  That  is  not  a  distinct 
cause  of  action.  She  merely  followed  the  course  pursued  by  said 
intestate  in  continuing  the  business.  He  treated  the  partnership 
effects  as  if  they  belonged  solely  to  himself,  and  she  acted  accord- 
ingly, in  administering  the  personal  estate  left  by  him.  Her  acts 
were  not  done  on  her  own  account,  but  in  her  capacity  of  adminis- 
tratrix. Having  as  administratrix  received  the  effects  of  the  part- 
nership, and  the  profits  which  accrued  from  the  use  thereof,  and 
having  acted  in  carrying  on  the  business  bonajide  for  the  benefit 
of  the  estate  which  she  represents,  she  is  liable  in  her  representa- 
tive capacity  and  ought  not  to  be  liable  personally.  (Pugsley  v. 
Aikin,  I  Ker.,  497.) 

Nor  is  any  distinct  cause  of  action  set  forth  against  the  heirs  and 
next  of  kin  of  Henry  Skidmore.  They  are  liable  only  to  refund 
such  sums  as  may  be  necessary  to  make  good  the  amount  which 
shall  be  found  to  be  due  to  the  plaintiff  upon  the  accounting,  and 
to  have  the  real  estate  which  has  descended  to  them  applied  to  the 
same  purpose.  It  is  not  the  object  of  the  action  to  enforce  the 
liability  imposed  on  them  by  statute  in  respect  to  creditors  of  their 
father. 

The  order  overruling  the  demurrer  must  be  affirmed  with  costs, 
with  leave  to  defendants  to  answer  in  twenty  days  on  payment  of 
costs. 

BABNABD,  P.  J.,  concurred.    DTKMAN,  J.,  not  sitting. 

Order  overruling  demurrer  affirmed,  with  costs,  with  leave  to 
defendant  to  answer  in  twenty  days,  on  payment  of  costs. 


56    PEOPLE  EX  BEL.  ACKERLY  v.  CITY  OF  BROOKLYN. 
SECOND  DEPARTMENT,  JUNE  TERM,  1876. 


THE  PEOPLE  EX   BEL.  SAMUEL  AOKERLY  AND  OTHEBS, 
APPELLANTS,  v.  CITY  OF  BROOKLYN,  RESPONDENT. 

Certiorari —  to  review  street  openings  —  issuing  of,  discretionary  —  must  be  applied 

for  toithin  two  years. 

The  writ  of  certiorari  is  an  appropriate  remedy  to  review  proceedings  for  the 
opening  and  grading  of  streets.  Although  there  is  no  statutory  limitation  of 
tune  within  which  the  writ  must  be  obtained,  it  is  not  one  of  right,  and  the 
court  can,  in  its  discretion,  refuse  it  in  any  case,  and  quash  it  where  it  has  been 
improperly  granted. 

The  general  rule  has  been  to  quash  the  writ  where  application  therefor  has  not 
been  made  in  due  season,  and  due  season  has  usually  been  limited  to  two 
years. 

APPEAL  from  an  order  made  at  Special  Term  quashing  a  writ 
of  certiorari. 

Application  was  made  August,  1875,  to  review  and  set  aside  an 
assessment  for  grading  and  paving  Orchard  street,  in  the  city  of 
Brooklyn.  The  ordinance  or  resolution  directing  the  improve- 
ment to  be  made  was  passed  August  28,  1871.  Advertisement  of 
the  proposed  district  of  assessment  and  for  remonstrances  was  duly 
made  in  June  and  July,  1871,  and  no  remonstrances  were  presented. 
Advertisement  for  proposals  to  do  the  work  was  duly  made,  and 
the  proposals  received  were  opened  October  9, 1871.  The  contract 
was  awarded  December  27,  1871,  and  the  contract  duly  completed 
and  the  improvement  fully  made  before  December  21,  1872.  The 
assessment  was  confirmed  March  18,  1875,  and  the  warrant  for  the 
collection  of  the  assessment  was  issued  April,  1875.  The  General 
Term,  by  an  order  made  February,  1876,  remitted  the  matter  for  a 
hearing  to  the  Special  Term.  At  the  Special  Term  an  order  was 
made  quashing  the  writ. 

T.  F.  Neville,  for  the  relators. 

William  C.  De  Witt,  corporation  counsel  for  the  respondent. 

GILBERT,  J. : 

No  doubt  a  certiorari  is  an  appropriate  remedy  in  a  case  of  this 
kind.  Nor  is  there  a  statutory  limitation  of  the  time  within  which 


PEOPLE  EX  BEL.  ACKERLY  v.  CITY  OF  BROOKLYN.     57 

SECOND  DEPARTMENT,  JUNE  TERM,  1876. 

the  writ  must  be  obtained.  Still  the  writ  is  not  one  of  right,  but 
the  court  has  a  discretion  to  refuse  it  in  any  case,  and  to  quash  it 
where  it  has  been  improperly  issued  (Magee  v.  Cutler,  43  Barb. 
239 ;  People  v.  Supervisors  of  Allegany,  15  "Wend.,  198 ;  Susque- 
hanna  Bank  v.  Supervisors  of  Broome,  25  N.  Y.,  312);  and  the 
general  rule  is,  that  it  will  be  quashed  where  it  appears  that  appli- 
cation for  the  writ  was  not  made  in  due  season.  It  has  been  held 
in  many  cases  that  it  ought  not  to  issue  after  the  lapse  of  two  years, 
and  that  when  issued  after  that  time  it  should  be  quashed.  (Elmen- 
dorf  v.  The  Mayor ',  25  Wend.,  693 ;  People  ex  rel.  Agnew  v.  The 
Mayor,  2  Hill,  13 ;  People  ex  rel.  Davis  v.  Hill,  1  N.  Y.  S.  C. 
[T.  &  C.],  154;  People  ex  rel.  Tompkins  v.  Landreth,  4  id.,  134; 
People  ex  rel.  Corwin  v.  Walter,  4  id.,  638.)  We  fully  approve 
the  rule  on  this  subject  laid  down  in  these  cases  and  the  reasons  on 
which  it  is  supported.  It  applies  emphatically  to  the  case  before 
us.  The  relators  did  not  move  until  four  years,  lacking  two  days, 
after  the  ordinance  for  the  grading  and  paving  the  street  was 
passed,  and  nearly  three  years  after  the  work  had  been  performed. 
No  objection  was  raised  by  them  until  the  assessment  for  the  cost 
of  the  work  was  put  in  the  course  of  collection.  They  should  have 
availed  themselves  of  this  remedy  within  two  years  after  the 
ordinance  was  passed.  Not  having  done  so  they  must  be  deemed 
to  have  acquiesced  in  the  passage  of  the  ordinance,  and  so  to  have 
precluded  themselves  from  setting  up  the  invalidity  of  the  ordi- 
nance to  affect  the  assessment  founded  thereon.  The  improvement 
is  a  local  one,  the  expense  of  which  is  properly  chargeable  on  the 
property  of  the  relators  and  the  other  adjoining  owners,  and  it 
would  be  unjust  to  others  to  relieve  them  from  the  burden  by 
imposing  it  upon  the  city. 

We  think  the  court  below  very  properly  quashed  the  writ  and  the 
order  must  be  affirmed,  with  ten  dollars  costs  and  disbursements. 

BARNARD,  P.  J.,  concurred.    DYKMAN,  J.,  not  sitting. 

Order  affirmed,  with  costs. 
HUN— VOL.  VIII.        8 


58        LONG  ISLAND  CUT  v.  LONG  ISLAND  R.  R.  CO. 
SECOND  DEPARTMENT,  JUNE  TERM,  1876. 


LONG  ISLAND  CITY,  APPELLANT,  v.  THE  LONG  ISLAND 
RAILROAD  COMPANY,  RESPONDENT. 

Municipal  charter  —  street  regulations  —  Railroad—  §14,  tub.  5  of  title  8,  and  §  18 
of  title  11  of  chapter  461  of  1871,  conttrued. 

Power  was  granted  to  Long  Island  City  by  its  charter,  to  regulate  the  use 
of  its  streets  by  railways  ;  such  charter  also  provided  that  nothing  therein 
contained  should  be  construed  as  granting  to  said  municipality  power  to  pro- 
hibit or  control,  in  any  manner,  the  use  of  steam  power  on  any  railroad  from  any 
part  of  Long  Island  to  the  East  river,  and  such  railroad  should  have  an  unob- 
structed right  to  run  to  the  East  river  with  their  locomotives  and  cars,  but  should 
furnish  suitable  guards  or  signals  at  the  street  crossings  for  the  protection  of 
the  public,  field,  that  the  legal  effect  of  this  latter  provision  was  to  exempt 
the  railroad  of  defendant,  which  ran  from  a  part  of  Long  Island  through  said 
city  to  the  East  river,  from  an  ordinance  requiring  it  to  station  a  flagman  at  its 
crossings. 

APPEAL  from  a  judgment  of  the  County  Court  of  Kings  county 
dismissing  plaintiff's  complaint.  The  action  was  brought  to  recover 
of  the  defendant  a  penalty  of  fifty  dollars,  imposed  by  an  ordinance  of 
the  plaintiff,  because  of  the  failure  of  the  defendant  to  station  a  flag- 
man at  a  certain  crossing  as  directed  by  said  ordinance.  The  ordi- 
nance being  passed  under  the  power  claimed  to  be  vested  in  them  by 
section  14,  subdivision  5,  title  3  of  their  charter,  chapter  461,  Laws  of 
1871.  The  dismissal  was  based  on  the  ground,  among  others,  that 
there  was  now  a  law  requiring  railroads  to  give  certain  "signals" 
on  approaching  all  streets  and  public  roads,  and  a  penalty  prescribed 
for  their  omission  so  to  do,  and  that  the  plaintiff's  charter  conferred 
no  power  to  require  of  the  defendant  an  additional  duty  in  regard 
thereto,  or  to  impose  an  additional  penalty  for  failure  to  perform  it. 

£  B.  Noble,  for  the  appellant. 

Downing  &  Stanbrough,  for  the  respondent. 

GILBERT,  J. : 

By  title  3,  chapter  1,  section  14,  subdivision  5  of  the  cnarter  of  Long 
Island  City  (Laws  1871,  chap.  461,  p.  905),  power  has  been  granted  to 


LONG  ISLAND  CITY  v.  LONG  ISLAND  R.  R.  CO.        59 

SECOND  DEPARTMENT,  JUNE  TEEM,  1876. 

the  common  council  thereof  to  make  an  ordinance  to  regulate  the  usa 
of  streets,  etc.,  by  railways,  but  by  section  19,  title  11  of  that  charter 
(Laws  1871,  982)  it  is  provided  that  nothing  therein  shall  be  con- 
strued as  granting  to  the  mayor  or  common  council  of  said  city, 
or  either  of  them,  or  to  any  officer  of  said  city  power  to  prohibit 
or  control  in  any  manner  the  use  of  steam  power  on  any  rail- 
road from  any  part  of  Long  Island  to  the  East  river,  and  such 
railroad  shall  have  an  unobstructed  right  to  run  to  the  East  river 
with  their  locomotives  and  cars,  but  shall  furnish  suitable 
guards  or  signals  at  the  street  crossings,  for  the  proper  protec- 
tion of  the  public.  It  is  conceded  that  the  defendants'  railroad 
is  one  of  those  which  are  protected  by  this  section.  The  legal 
effect  of  that  provision,  we  think,  is  to  except  those  railroads 
from  the  operation  of  the  grant  of  power  first  mentioned.  The 
common  council  cannot  control  the  use  of  steam  power  by  the 
defendants  on  their  railroad,  nor  obstruct  their  right  to  run  to  the 
East  river  with  their  locomotives  and  cars.  The  ordinance  passed 
by  the  plaintiff  requires  the  defendants  to  station  flagmen  at  all 
points  where  the  railroad  crosses  a  street,  avenue,  road  or  public 
place,  and  as  it  applies  only  to  companies  using  steam  power,  is  a 
direct  attempt  to  control  the  use  of  that  power  on  their  road,  and 
if  carried  out  would  necessarily  obstruct  the  right  which  the  defend- 
ants acquired  by  virtue  of  their  act  of  incorporation.  For  any 
addition,  by  means  of  an  ordinance,  to  the  duties  o$  burdens  imposed 
by  law  on  the  defendants,  would  necessarily  be  an  exercise  of  con- 
trol over,  and  restrictive  of  the  right  before  enjoyed  by  them. 

We  think,  therefore,  that  the  ordinance  transcends  the  power 
vested  in  the  common  council,  and  upon  that  ground  the  judgment 
must  be  affirmed. 

BARNARD,  P.  J.,  dissented. 

Present — BARNARD,  P.  J.,  GILBERT  and  DTKMAN,  JJ. 

Judgment  affirmed  with  costs. 


60  PEOPLE  v.  GAINEY. 

SECOND  DEPARTMENT,  JUNE  TERM,  1876. 


THE    PEOPLE    OF    THE    STATE  OF   NEW  YORK, 
RESPONDENTS,  v.  CHARLES  GAINEY,  APPELLANT. 

Licciaes  (%  8,  chap.  175,  1870)  may  be  granted  for  less  than  a  year. 

The  provision  that  all  the  licenses  granted  by  the  commissioners  of  excise  shal 
expire  at  the  end  of  one  year  from  the  time  they  shall  be  granted,  is  a  limita 
tion  of  the  power  of  the  commissioners,  not  a  constituent  of  the  license  itself, 
and  within  the  limitation  aforesaid  the  commissioners  have  full  power  to  deter- 
mine the  period  of  a  license.  Therefore,  when  a  person  was  indicted  for  sell- 
ing liquor  after  May  1,  1875,  and  before  December  7,  1875,  without  a  license, 
held,  he  was  not  protected  by  a  license  granted  December  7,  1874,  and  which, 
by  its  terms,  expired  May  1,  1875. 

CEBTIOBAEI  on  a  bill  of  exceptions,  to  review  the  conviction  of 
the  defendant  for  selling  strong  and  spirituous  liquors. 

The  defendant  was  indicted  for  selling  spirituous  liquors  without 
a  license.  Admitted  the  sales  at  the  time  alleged  (June  1,  1875), 
but  claimed  on  the  trial  that,  as  the  license  was  granted  December 
7,  1874,  although  by  its  terms  it  expired  May  1.  1875,  it  did  not 
expire  until  the  end  of  the  year.  That,  as  the  statute  read,  "  all 
licenses  shall  expire  at  the  end  of  one  year  from  the  time  they  are 
granted,"  the  period  of  time  being  fixed  by  the  legislature,  the 
commissioners  of  excise  had  no  power  to  fix  a  different  time,  and 
their  attempt  to  fix  a  different  time  in  the  license  was  mere  sur- 
plusage, as  when  they  granted  a  license  their  power  was  expended. 

Geo.  H.  Decker  and  D.  D.  McKoon^  for  the  appellant. 
C.  F.  Brown,  district  attorney,  for  the  respondent. 

GILBERT,  J. : 

We  think  the  construction  which  the  court  below  put  upon  the 
statute  under  which  the  defendant's  license  was  granted  (Laws 
1870,  chap.  175,  §  3)  is  the  correct  one.  The  provision  that  all  the 
licenses  granted  by  the  commissioners  of  excise  shall  expire  at  the 
end  of  one  year  from  the  time  they  shall  be  granted,  is  a  limitation 
of  the  power  of  the  commissioners.  It  is  not  a  constituent  of  the 
license  itself.  "Within  the  limitation  aforesaid,  the  commissioners 


YOUNG  v.  DRAKE.  61 


SECOND  DEPARTMENT,  JUNE  TERM,  1876. 


have  full  power  to  determine  the  period  of  the  license.  The  powei 
being  a  general  one,  to  grant  licenses  as  provided  by  law,  the  only 
restriction  upon  it  must  be  sought  in  the  statutes  regulating  excise, 
and  no  restriction  upon  the  power  of  the  commissioners  to  grant  a 
license  for  a  shorter  period  than  one  year  has  been  pointed  out. 

The  rulings  of  the  court  upon  the  trial,  we  think,  were  clearly 
proper. 

The  conviction  should  be  affirmed,  and  the  proceedings  remitted 
to  the  Orange  County  Court  of  Sessions  with  directions  to  proceed 
thereon  according  to  law. 

BABNABD,  P.  J.,  concurred. 

Present — BABNABD,  P.  J.,  GILBEBT  and  DYEMAN,  JJ. 

Conviction  affirmed  and  proceedings  remitted  to  the  Court  of 
Sessions  in  Orange  county. 


CHARLES  C.  YOUNG,  RESPONDENT,  v.  WILLIAM  F.  DRAKE, 
ALBERT  L.  PRITCHARD  AND  CHARLES  CURTISS  AND 
THE  SMITH  AND  PARMELEE  GOLD  COMPANY. 

APPELLANTS. 

Action  by  stockholder  against  trustees  and  company  —  when  maintainable  —  Code, 
§  119  —  Evidence  —  fliat  corporation  will  not  prosecute. 

A.  complaint  averring  that  there  are  only  five  trustees  of  a  company;  that  the 
plaintiff  was  a  stockholder  when  the  action  was  brought;  that  three  of  such 
trustees,  who  were  the  persons  charged  with  committing  a  fraud,  were  made 
defendants,  and  that  the  action  is  brought  in  behalf  of  all  other  stockholders 
who  will  join,  comes  within  section  119  of  the  Code,  and  a  demurrer  interposed 
thereto  on  the  grounds  "that  the  plaintiff  has  not  legal  capacity  to  sue:  1st. 
Because  the  plaintiff  only  became  a  stockholder  after  the  matters  complained 
of  occurred;  3d.  Because  the  statutes  of  this  State  restrict  the  power  to  bring 
actions  of  this  nature  to  the  people  of  the  State,  through  their  attorney-general, 
and  to  creditors  of  the  company;  3d.  That  the  Smith  and  Parmelee  Gold  Com- 
pany alone  had  the  right  to  maintain  the  action,  and  had  never  been  requested 
BO  to  do,"  will  not  be  sustained. 

Although  the  general  rule  is  that  an  action  of  this  kind  must  be  brought  by  the 
corporation,  yet  where  the  complaint  shows  that  the  corporation  is  still  con- 
trolled by  the  same  trustees  who  are  accused  of  the  fraud,  or  where  such 
vjcused  persons  are  a  majority  of  the  trustees,  it  is  sufficient  evidence  thfti 


62  YOUNG  v.  DRAKE. 


SECOND  DEPARTMENT,  JUNE  TERM,  1876. 


the  corporation  will  not  prosecute,  and  that  an  application  to  the  trustees  to 
direct  a  suit  to  be  brought  against  themselves,  or  the  derelict  majority  of  theil 
members,  would  be  useless. 

A  purchase  of  stock,  after  an  alleged  fraud  is  committed,  does  not  condone  the 
fraud,  and  the  purchaser  acquires  all  the  rights  of  the  person  of  whom  he 
purchased. 

APPEAL  from  an  order  made  at  Special  Term,  overruling 
demurrers  to  the  complaint. 

The  complaint  alleged,  in  substance,  that  the  plaintiff  was  the 
owner  of  1,000  shares  of  the  capital  stock  of  the  Smith  and  Parmelee 
Gold  Company,  a  corporation  organized  under  the  general  laws  of 
the  State  of  New  York,  having  five  trustees  and  its  principal  place 
of  business  in  the  city  of  New  York,  and  that  he  brought  the 
action  in  behalf  of  himself  and  of  all  the  other  stockholders  who 
should  join  therein.  That  the  defendants  Drake  and  Pritchard 
were  trustees  of  said  company  in  September,  1868 ;  the  defendant 
Curtis  in  January,  1869 ;  two  other  trustees,  Unfits  Hatch  being 
elected  in  January,  1870,  and  Jacob  B.  Jewett  in  January,  1871 ; 
all  of  whom  were  re-elected  and  were  trustees  when  his  action  was 
brought.  That  on  the  llth  day  of  January,  1869,  the  defendant 
Pritchard  was  elected  president  and  the  defendant  Drake  treasurer 
thereof,  and  have  ever  since  continued  to  hold  said  offices.  That 
at  meetings  of  said  trustees,  at  which  said  Hatch  and  Jewett  were 
not  present,  but  at  which  the  three,  named  as  defendants  in  this 
action,  constituted  a  quorum  for  the  transaction  of  business,  they 
voted  to  each  other  divers  sums  of  money  as  salaries  and  for  other 
purposes. 

That  in  pursuance  of  such  resolutions  the  said  Pritchard  received 
from  the  treasurer,  on  or  about  the  same  day,  the  sum  of  $350, 
and  also  the  further  sum  of  $1,150  on  account  of  salary ;  and  the 
said  Drake  took  from  the  company  funds,  in  his  hands  as  treasurer, 
the  sum  of  $275,  and  the  further  sum  of  $1,150  on  account  of 
salary. 

Then  the  said  Pritchard  and  Drake,  for  the  $850  balance  of 
salary  respectively,  and  also  for  the  further  sum  of  $166.66,  added 
thereto  by  each,  for  salary  beyond  the  time  specified  in  said  resolu- 
tions, with  the  knowledge  and  assent  of  the  said  Curtiss,  procured 
judgments  against  the  company  in  the  district  of  Gilpin  county; 


YOUNG  v.  DRAKE.  63 


SECOND  DEPARTMENT,  JUNE  TERM,  1876. 


Colorado,  where  the  company's  mining  lands  were  situated,  which 
judgments  were  entered  in  May  term,  1871,  each  for  the  sum  of 
$1,066.66.  That  executions  were  issued  thereon  to  the  sheriff  of 
the  county  aforesaid  under  which  sales  were  made  of  the  mining 
lands,  mills  and  machinery  of  said  Smith  and  Parmelee  Company, 
in  Colorado  aforesaid,  in  1871,  of  great  value,  but  on  a  single  bid 
only  in  the  interest  of  the  plaintiffs  in  the  judgments,  to  an  amount 
sufficient  only  to  cover  or  pay  the  said  judgments ;  whereby  the 
said  Smith  and  Parmelee  Company  were  divested  of  the  lands, 
etc.,  so  sold,  and  sustained  great  damages  by  reason  thereof.  And 
plaintiff  avers  that  the  said  judgments  were  recovered  and  enforced 
by  the  said  Pritchard  and  Drake,  in  collusion  each  with  the  other, 
and  that  defendant  Curtiss  had  knowledge  of  all  the  proceedings 
and  concurred  therein,  the  three  making  a  majority  of  the  trustees. 
That  the  resolutions  of  the  trustees,  by  which  the  sums  aforesaid 
were  given  to  the  said  Pritchard  and  Drake,  were  void  in  law,  and 
that  the  said  defendants  Pritchard,  Drake  and  Curtiss  are  liable 
for  the  amounts  so  unlawfully  voted  and  paid  to  said  Pritchard  and 
Drake.  That  the  recovery  of  judgments  for  the  residue  claimed 
under  said  resolutions,  and  for  the  additional  sum  of  $166.66  added 
thereto,  without  any  authority  whatever,  was  invalid,  and  that  the 
said  Pritchard,  Drake  and  Curtiss  ought  to  answer  for  the  loss  to 
the  company  of  the  property  sold  under  executions  issued  upon 
such  judgments,  and  claimed  judgment  against  the  defendants 
Pritchard,  Drake  and  Curtiss  therefor,  and  that  a  receiver  be 
appointed  to  receive  the  sum  found  to  be  due  by  them  and  distri- 
bute it  to  the  stockholders. 

John  S.  Lawrence,  for  the  appellants. 
Alex.  H.  Dana,  for  the  respondent. 

GILBERT,  J. : 

We  think  the  demurrers  were  properly  overruled.  The  general 
rule  no  doubt  is,  that  an  action  of  this  kind  must  be  brought  by  the 
corporation ;  but  where  the  complaint  shows  that  the  corporation 
is  still  under  the  control  of  those  who  must  be  defendants  in  the 
suit,  the  stockholders,  who  are  the  real  parties  in  interest,  may 


64  YOUNG  v.  DRAKE. 


SECOND  DEPARTMENT,  JUNE  TERM,  1878. 


bring  the  suit  in  their  own  names,  making  the  corporation  a  party 
defendant ;  for  a  court  of  equity  never  permits  a  wrong  to  go  unre- 
dressed  merely  for  the  sake  of  form.  The  individual  defendants 
are  in  law,  as  well  as  in  name,  trustees,  and  the  stockholders  are 
the  cestuis  qite  trust,  and  have  a  joint  interest  in  all  the  property 
and  effects  of  the  corporation.  Upon  general  principles  of  equity, 
therefore,  stockholders  have  a  right  to  maintain  an  action  against 
the  trustees  of  the  corporation  for  a  fraudulent  breach  of  trust, 
when  it  is  apparent  that  the  corporation  itself  will  not  sue  for  their 
benefit.  And  where  the  corporation  is  still  controlled  by  the  same 
trustees  who  are  accused  of  the  fraud,  or  where  such  accused  per- 
sons are  a  majority  of  the  trustees,  that  is  sufficient  evidence  that 
the  corporation  will  not  prosecute,  and  that  an  application  to  the 
trustees  to  direct  a  suit  to  be  brought  against  themselves,  or  the 
derelict  majority  of  their  members  would  be  useless.  The  law 
never  requires  the  performance  of  a  supererogatory  act.  (Ang.  & 
Ames  on  Corp.  [10th  ed.],  §  312,  and  cases  cited.)  The  action  is 
brought  in  behalf  of  the  plaintiff  and  all  other  stockholders,  con- 
formably to  section  119  of  the  Code.  It  is  averred  in  the  com- 
piamt  that  there  are  only  five  trustees ;  three  of  them,  being  the 
persons  charged  with  having  committed  the  fraud,  are  made  defend- 
ants, and  it  is  alleged  that  they  are  still  trustees.  The  case,  we 
think,  is  within  the  rule  stated. 

It  is  enough  that  the  plaintiff  was  a  stockholder  when  the  action 
was  brought.  If  he  purchased  his  stock  after  the  alleged  fraud  was 
committed,  that  did  not  condone  the  fraud.  The  plaintiff  acquired 
all  the  rights  of  the  person  of  whom  he  purchased.  (Ramsey  v. 
Gould,  57  Barb.,  398.) 

It  is  hardly  necessary  to  discuss  the  other  points,  namely :  that 
there  is  a  misjoinder  of  causes  of  action,  and  that  the  court  has  no 
jurisdiction.  The  complaint  sets  forth  only  one  cause  of  action, 
and  the  court  clearly  has  jurisdiction. 

The  order  must  be  affirmed,  with  costs,  with  leave  to  the  defend- 
ants to  amend  in  twenty  days  on  payment  of  costs. 

BARNAKD,  P.  J.,  concurred.     DYKMAN,  J.,  not  sitting. 

Order  overruling  demurrers  affirmed,  with  costs,  with  leave  tc 
defendants  to  amend  in  twenty  days  on  payment  of  costs. 


ANDREWS  v.  MONILAWS.  65 

SECOND  DEPARTMENT,  JUNE  TERM,  1876. 


BENJAMIN   ANDREWS,  RESPONDENT,  v.  CATHARINE   A. 
MONILAWS,  APPELLANT. 

Harried  woman — collection  of  debt,  charged  on  her  separate  estate  —  should  be  by  com- 
mon law  action — not  by  action  for  foreclosure — Judgment  by  default — Belief 
greater  than  that  asked  for  in  complaint — irregular. 

The  defendant,  a  married  woman,  made  her  promissory  note,  in  and  by  which 
she  in  express  terms  charged  her  separate  estate.  An  action  was  brought  (by 
service  of  summons  for  relief)  to  enforce  the  lien  upon  and  payment  of  the 
amount  thereof  out  of  the  defendant's  property.  Defendant  did  not  appear, 
and  on  default  plaintiff  obtained  an  order  of  reference  to  compute  the  amount 
due,  and  upon  the  report  of  the  referee  judgment  was  entered,  adjudging 
and  directing  that  the  defendant's  property  so  charged  and  described  in  the 
complaint  be  sold  by  a  referee  therein  named,  and  that  the  defendant  be  barred 
of  and  from  all  equity  of  redemption  in  said  premises,  etc.  The  said  premises 
were  sold  by  such  referee  in  pursuance  of  said  judgment. 

Held,  that  sections  274  and  287  of  the  Code  provide  the  same  remedy  by  judgment 
and  execution  against  a  married  woman  as  the  law  affords  against  other  persons, 
with  the  single  qualification  that  the  execution  can  be  levied  and  collected  only 
of  her  separate  property. 

That  the  statute  having  given  a  legal  remedy  which  was  adequate,  there  was  no 
occasion  for  administering  equitable  relief. 

That  although  formerly  such  a  contract  was  treated  as  an  appointment  of  or  charge 
upon  the  separate  estate  of  a  married  woman,  and  the  only  remedy  for  its 
enforcement  was  by  bill  La  equity,  yet  that  mode  of  proceeding  had  been 
entirely  superseded  by  section  7  of  chapter  172  of  the  Laws  of  1862,  which 
enacted  that  "  a  married  woman  may  be  sued  in  any  of  the  courts  of  this  State, 
and  whenever  a  judgment  shall  be  recovered  against  a  married  woman,  the 
same  may  be  enforced  by  execution  against  her  sole  and  separate  estate  in  the 
game  manner  as  if  she  were  sole." 

That  such  enactments  were  in  pan  materia  with  the  special  statutes  for  the  pro- 
tection of  married  women,  and  should  be  so  construed  as  to  insure  to  them  the 
same  protection  against  the  sacrifice  of  their  property  which  the  law  gives  to 
a  feme  sole,  viz.,  levy,  advertisement,  right  of  redemption,  etc. 

That  the  more  summary  and  expensive  remedy  pursued  in  this  case  of  fore- 
closing a  lien  or  charge,  and  thereby  cutting  off  the  right  of  redemption,  was 
in  contravention  thereof. 

A  judgment,  taken  by  default,  giving  greater  relief  than  that  demanded  in  the  com- 
plaint, should  be  set  aside. 

APPEAL  from  an  order  made  at  Special  Term,  denying  a  motion 
to  Bet  aside  a  judgment  against  the  defendant  and  a  sa^e  made  in 
pursuance  thereof.     The  defendant,  Monilaws,  a  married  woman, 
HUN— VOL.  VIII.         9 


66  ANDREWS  v.  MONILAWS. 

SECOND  DEPARTMENT,  JUNE  TERM,  1876. 

executed  her  note  at  six  months,  dated  April  1, 1873,  for  $188.16, 
with  interest,  to  George  Andrews,  and  in  and  by  it  charged  her 
separate  estate  with  the  payment  thereof.  The  note,  before  its 
maturity,  was  duly  indorsed  to  the  plaintiff,  who,  when  it  became 
due,  demanded  payment,  and  on  failure  to  pay  brought  suit.  A 
summons  for  relief  and  a  verified  complaint  were  served  May 
10,  1875.  The  latter  demanded  judgment  for  $188.16,  with 
interest  from  April  1,  1873,  and  that  defendant's  property,  deserib 
ing  it,  be  made  chargeable  with  said  indebtedness,  and  that  it  be 
sold  under  the  direction  of  the  court  for  the  payment  of  said  indebt- 
edness, and  that  the  plaintiff  have  such  other  order  or  relief  in  the 
premises  as  may  be  just,  together  with  the  costs  in  this  action. 
Notice  of  Us  pendens  was  filed  May  25,  1875.  No  appearance, 
answer  or  demurrer  was  served  by  defendant,  and  plaintiff,  on 
default,  obtained  an  order  of  reference  to  compute  amount  due, 
and  on  the  coming  in  of  the  report  an  order  was  made  at  Special 
Term  confirming  it,  and  adjudging  that  all  and  singular  the  prem- 
ises mentioned  in  the  complaint,  or  so  much  thereof  as  may  be 
sufficient,  be  sold,  etc.,  following  the  language  of  the  ordinary 
judgment  on  the  foreclosure  of  a  mortgage,  including  the  naming 
of  the  referee  to  sell,  the  execution  of  the  deed  to  the  purchaser,  the 
barring  of  the  equity  of  redemption,  and  disposition  of  the  proceeds 
of  sale,  etc.,  including  an  allowance  of  two  and  a  half  per  cent. 

Upon  an  affidavit  of  the  defendant,  the  judgment  roll,  and  other 
papers  herein,  an  order  was  obtained  to  show  cause  why  the  judg- 
ment and  all  subsequent  proceedings  should  not  be  set  aside  on  the 
ground  : 

1.  That  the  summons  was  irregular,   the  same  being  for  relief 
instead  of  contract. 

2.  That  the  damages  should  have  been  assessed  by  the  clerk,  and 
not  by  a  referee,  as  the  amount  of  plaintiff's  claim  was  liquidated. 

3.  That  the  decree  and  part  of  judgment  roll  was  irregular  and 
void. 

a.  In  ordering  the  premises  to  be  sold  by  a  referee. 

b.  In  that  it  bars  and  forecloses  the  defendant  of  and  from  all 
equity  of  redemption. 

c.  In  granting  an  allowance  to  plaintiff  of  two  and  one-half  per 
cent. 


ANDREWS  v.  MONILAWS.  67 

SECOND  DEPARTMENT,  JUNE  TERM,  1876. 

4.  That  the  bill  of  costs  and  taxation  by  the  clerk  was  irregular 
and  void. 

a.  In  that  the  plaintiff  was  not  entitled  to  fifteen  dollars  costs 
after  notice  of  trial,  the  defendant  not  appearing. 

5.  Nor  allowance  by  statute. 

c.  Nor  allowance  by  the  court. 

d.  Nor  referee's  fees. 

e.  Nor  for  filing  Us  pendens. 
f.  Nor  for  searches. 

The  motion  was  denied,  and  the  defendant  appealed  to  this  court. 

Christian  G.  Merits,  for  the  appellant. 
Joseph  S.  Ridgway,  for  the  respondent. 

GILBERT,  J. : 

A  promissory  note  of  a  married  woman,  made  in  the  course  of 
her  separate  business,  or  which  is  for  the  benefit  of  her  separate 
estate,  is  a  valid  contract  and  may  be  enforced  at  law  in  the  same 
manner  as  if  she  had  not  been  married.  Formerly  such  a  contract 
was  treated  as  an  appointment  of,  or  charge  upon,  the  separate 
estate  of  the  married  woman,  and  the  only  remedy  for  its  enforce- 
ment was  by  bill  in  equity.  But  that  mode  of  proceeding  to  enforce 
such  contracts  has  been  entirely  superseded  by  legislation.  By  sec- 
tion 7  of  chapter  172  of  the  Laws  of  1862,  it  is  enacted,  that  a 
married  woman  may  be  sued  in  any  of  the  courts  of  this  State,  and 
whenever  a  judgment  shall  be  recovered  against  a  married  woman 
the  same  may  be  enforced  by  execution  against  her  sole  and  sepa- 
rate estate  in  the  same  manner  as  if  she  were  sole.  Sections  274 
and  287  of  the  Code  provide  the  same  remedy  by  judgment  and 
execution  against  a  married  woman  as  the  law  affords  against  other 
persons,  with  the  single  qualification  that  the  execution  can  be 
jevied  and  collected  only  of  her  separate  property.  The  language 
of  these  statutes  is  perfectly  plain.  If,  however,  they  were  sus- 
ceptible of  a  construction  against  their  manifest  intent,  which  would 
enable  us  to  uphold  this  proceeding,  we  should  not  apply  it.  The 
statute  having  given  a  legal  remedy  which  is  adequate,  there  is  no 
occasion  for  administering  equitable  relief.  The  enactments  cited 


68  FOSTER  v.  HAWLEY. 

SECOND  DEPARTMENT,  JUNE  TERM,  1876. 

are  in  pari  materia  with  the  special  statutes  for  the  protection  of 
married  women,  and  they  should  be  so  construed  as  to  insure  to 
them  the  same  protection  against  a  sacrifice  of  their  property  which 
the  law  gives  to  femes  sole,  namely,  levy,  advertisement,  right  of 
redemption,  etc.  The  more  summary  and  expensive  remedy 
pursued  in  this  case,  of  foreclosing  a  lien  or  charge,  thereby  cutting 
off  the  right  of  redemption,  which  is  given  by  statute  to  all  per- 
sons whose  lands  have  been  sold  on  execution,  we  think  is  in  con- 
travention of  those  enactments.  So  are  the  authorities.  (Hier  v. 
Staples,  51  N.  Y.,  136 ;  Corn  Ex.  Ins.  Go.  v.  JSabcock,  42  id.,  613 ; 
Peack  v.  Lemon,  1  Lans.,  295;  Baldwin  v.  Kimmel,  16  Abb.,  353  ; 
1  Wait's  Pr.,  124.) 

The  judgment  was  taken  by  default,  yet  it  gives  the  plaintiff 
greater  relief  than  is  demanded  in  the  complaint.  For  that  reason 
also  it  should  be  set  aside.  (Code,  §  275.) 

The  order  appealed  from  should  be  reversed,  and  an  order  should 
be  entered  vacating  the  judgment  and  all  subsequent  proceedings, 
with  ten  dollars  costs  at  Special  Term,  and  ten  dollars  costs  on  this 
appeal,  besides  disbursements. 

BARNARD,  P.  J.,  concurred.     DYKMAN,  J.,  not  sitting. 

Order  reversed  and  motion  granted  with  ten  dollars  costs  of 
motion  and  ten  dollars  costs  of  appeal,  and  disbursements. 


MARY  ANN  FOSTER,   APPELLANT,  v.  DAVID  HAWLEY 

AND   OTHERS,    RESPONDENTS. 

Concubinage  —  change  of,  into  matrimony — evidence  of. 

L  cohabitation,  illicit  in  its  origin,  is  presumed  to  continue  to  be  of  that  charac- 
ter unless  the  contrary  be  proved,  and  cannot  be  transformed  into  matrimony 
by  evidence  which  falls  short  of  establishing  the  fact  of  an  actual  contract  of 
marriage.  Such  contract  may  be  proved  by  circumstances,  but  they  must  be 
such  as  to  exclude  the  inference  or  presumption  that  the  former  relation  con- 
tinued, and  satisfactorily  prove  that  it  had  been  changed  into  that  of  actual 
marriage  by  mutual  consent. 

The  presumption  of  a  contract  of  marriage  cannot  be  raised  when  the  direct 
consequence  of  it  would  be  to  involve  both  parties  in  the  crime  of  bigamy. 


FOSTER  v.  HAWLEY.  69 

SECOND  DEPARTMENT,  JUNE  TERM,  1876. 

APPEAL  from  an  order  of  the  surrogate  of  Westchester  county, 
made  in  the  course  of  the  proceedings  to  prove  the  will  of  Isaac 
M.  Singer,  denying  the  application  of  Mrs.  Mary  A.  Foster  to  be 
allowed  to  intervene  in  the  proceedings  and  contest  the  probate  of 
his  will  on  the  ground  that  she  was  his  widow. 

In  1830,  Isaac  M.  Singer  married,  at  Palmyra,  New  York,  Cath- 
arine Maria  Haley.  They  had  two  children  born  to  them  and  lived 
together  until  1836.  While  Singer  was  on  one  of  his  theatrical 
rounds  he  met,  at  Baltimore,  in  1836,  Mary  Ann  Sponsler  (the 
plaintiff;.  He  left  Baltimore  and  went  to  New  York,  whither  she 
followed  him,  and  although  she  knew  he  then  had  a  wife  living, 
cohabited  with  him,  traveling  about  the  country  with  him,  taking 
such  names  as  he  assumed  and  after  his  prosperity  (arising  from  his 
invention  of  a  sewing  machine)  his  real  name  of  Singer.  She 
had  ten  children  by  him.  In  1860,  or  about  twenty-four  years 
afterward,  Singer  obtained  a  divorce  from  his  wife  and  continued 
to  cohabit  with  the  plaintiff  for  about  six  months  thereafter, 
when  he  separated  from  her.  Afterward,  in  about  1861,  she 
commenced  a  suit  for  divorce.  No  decree  was  had  therein,  but 
Singer  settled  the  matter  pecuniarily  with  the  plaintiff,  and  in  1862 
the  plaintiff  married  one  Foster.  Subsequently  (June  13,  1863) 
Singer  married  the  woman  whom  he  recognized  in  his  will  as  his 
wife,  by  whom  he  had  six  children,  left  the  country  and  died  in 
England  in  1875.  On  the  probate  of  his  will,  the  plaintiff  claimed 
to  intervene  as  his  wife  and  widow,  and  the  question  having  been 
tried  as  a  preliminary  issue,  the  surrogate  made  his  decision  and 
order  against  the  plaintiff,  January  10,  1876,  from  which  she 
appealed  to  this  court. 

It  was  claimed  that  the  commencement  of  the  illegal  cohabitation 
between  the  plaintiff  and  Singer  was  based  on  a  promise  by  him 
that  if  she  would  live  with  him  as  his  wife,  as  soon  as  he  should 
be  able  to  procure  a  divorce  from  the  woman  who  claimed  to  be 
his  wife,  he  would  marry  her ;  that  subsequent  cohabitation  after 
such  divorce  was  obtained  was  a  ratification  of  their  marital  rela- 
tion, and  evidence  that  they  consented  to  be  man  and  wife. 

R.  W.  Van  Velt,  for  the  appellant.  The  twenty-four  years  matri- 
monial recognition  and  cohabitation  of  the  parties,  followed  by  the 


70  FOSTER  v.  HAWLEY. 

SECOND  DEPARTMENT,  JUKE  TKKM,  1876. 

gix  months  deliberate  ratification  and  confirmation  of  their  marital 
relationship,  during  which  no  disqualification  whatever  on  the  part 
of  either  existed,  furnished  absolute  and  conclusive  evidence  that 
they  consented  to  be  man  and  wife. 

Matrimonial  cohabitation,  general  repute,  public  acknowledg- 
ment, private  admissions,  a  judicial  decision,  a  solemn  agreement, 
confirmed  by  partial  performance  by  the  testator,  leave  no  ground 
whatever  on  his  part  for  a  denial  of  consent.  Under  all  the 
authorities,  English  and  American,  the  marriage  is  made  out. 
(Cunningham  v.  Cunningham,  Dows.  Par.  R.,  Vol.  2,  483 ; 
McAdam  v.  Walker,  1  Dow.,  148  ;  Fenton  v.  Reed,  4  Johns., 
51;  Jackson  v.  Claw,  18  id.,  345 ;  Jackson  v.  Winne,  7  Wend.,  47 ; 
Canjolle  v.  Ferrie,  26  Barb.,  178 ;  The  People  v.  Humphrey,  7 
Johns.,  314 ;  Rose  v.  Clark,  8  Paige,  574 ;  Cheney  v.  Arnold,  15 
K  Y.,  345 ;  In  the  Matter  of  Taylor,  9  Paige,  611 ;  Clayton  v. 
Wardell,  4  Com.,  230;  O'Gara  v.  Eisenlohr,  38  N.  Y.,  296; 
Campbell  v.  Campbell,  L.  R.  [2  Scotch  and  Divorce  Cases],  182.) 

James  C.  Carter  and  John  K.  Porter,  for  the  respondents.  The 
prime  requisite  to  a  valid  marriage  under  our  law  is  the  interchange 
between  the  parties  of  a  mutual  present  consent  to  take  each  other 
as  husband  and  wife.  This  consent  is  of  itself  fully  sufficient ;  and 
for  it  there  is  no  substitute  or  equivalent.  (Clayton  v.  Wardell, 
4  N.  Y.,  230  ;  Fenton  v.  Reed,  4  Johns. ;  Queen  v.  Miller,  10  01. 
&  Fin. ;  1  Bishop  on  Mar.  and  Div.,  §§  227,  228.)  The  modes  of 
proving  the  existence  of  such  consent  are  various.  But  they  should 
never  be  confounded  with  the  consent  itself,  which  is  always  the 
same.  (Lord  CHELMSFORD,  in  Shedden  v.  Patrick,  L.  R.  [1  H.  L. 
Pr.  and  Div.],  540,  541 ;  1  Bishop  on  Mar.  and  Div.,  §§  246,  247.) 
Proof  of  cohabitation  as  husband  and  wife  does  not  constitute  mar- 
riage. It  may,  in  some  cases,  be  evidence  of  marriage.  It  can 
never  be  any  thing  more.  "  Consensus,  non  concubitus,  facitnup- 
tias"  is  the  universally  received  maxim.  (Shedden  v.  Patrick,  ubi 
tupra  ;  Letters  v.  Cody,  10  Cal.,  583  ;  Jackson  v.  Winne,  7  Wend,, 
47 ;  Cheney  v.  Arnold,  15  N.  Y.,  345  ;  Duncan  v.  Duncan,  10 
Ohio  State,  181.)  If  the  agreement  is  not  one  of  present  consent 
to  accept  each  other  as  husband  and  wife,  but  is  per  verba  defuturo, 
looking  to  a  marriage  at  some  future  time,  it  not  only  fails  to  prove 


FOSTER  v.  HAWLEY.  71 

SECOND  DEPARTMENT,  JUNE  TERM,  1876. 

actual  marriage,  but,  by  its  very  terms,  excludes  any  such  conclu- 
sion. (Lord  COTTENHAM  in  Stewart  v.  Mensies,  2  Rob.  App.  Cases, 
547,  590 ;  Cheney  v.  Arnold,  15  N.  Y.) 

GILBERT,  J. : 

We  cannot  assent  to  the  proposition  put  forth,  in  behalf  of  the 
appellant,  that  the  illicit  relation  which  she  formed  with  Singer, 
assuming  that  it  was  formed  on  the  faith  of  his  promise  to  make 
her  his  wife  whenever  the  impediment  of  his  previous  marriage 
should  have  been  removed,  was  changed  into  matrimony  merely 
by  the  removal  of  that  impediment  and  their  continuance  of  the 
same  mode  of  life  as  theretofore.  On  the  contrary,  we  think  that 
it  was  incumbent  on  Mrs.  Foster  to  show  that  something  was  done, 
after  such  impediment  had  been  removed,  which  in  fact  constituted 
a  marriage  between  them,  and  that  there  was  a  failure  of  proof  on 
that  point.  A  concubine  cannot  acquire  the  rights  of  a  wife  by 
survivorship.  The  marriage  relation,  however  formed,  is  a  sacred 
one,  and  sound  public  policy  requires  that  its  sanctity  be  preserved 
inviolate.  It  is  quite  apparent  that  if  married  persons  were  per- 
mitted to  make  valid  executory  promises  of  future  marriage  with 
third  persons  this  policy  would  be  at  once  subverted,  and  the  prac- 
tical evils  of  polygamy  would  receive  the  sanction  of  law.  The 
question,  therefore,  is  one  of  feet  to  be  determined  by  the  applica- 
tion of  legal  rules  to  the  evidence  in  the  case.  It  is  unnecessary  to 
go  over  that  evidence  in  detail.  It  is  undisputed  that  the  relation 
between  Singer  and  the  appellant  was  illicit  in  its  origin.  It  began 
in  1836  when  Singer  had  a  wife  living.  It  was  voluntarily  entered 
into  by  Mrs.  Foster,  with  full  knowledge  of  that  fact,  and  so  con- 
tinued until  1860,  a  period  of  nearly  twenty-four  years,  when  Singer 
obtained  a  divorce  from  his  wife.  That  relation  was  none  other 
than  an  illegal  and  adulterous  one.  A  valid  marriage  between  the 
parties  to  it,  prior  to  such  divorce,  was  not  possible.  The  presump- 
tion of  law  is,  that  a  cohabitation  which  was  illicit  in  its  origin 
continues  to  be  of  that  character  throughout  its  duration,  unless 
the  contrary  be  proved.  (Clayton  v.  Wardell,  4  N.  Y.,  230; 
Calotte  v.  Ferrte,  23  id.,  106  ;  O'Gara  v.  Eisenlohr,  38  id.,  296 ; 
Cunningha/m  r.  Cunningham,  2  Don.  P.  C.,  481 ;  Lapsley  v 
Grierson,  1  H.  L.  Cases,  498 ;  G.  C.,  8  Scotch  Sess.  Cases  [3d 


72  FOSTER  v.  HAWLEY. 


SECOND  DEPARTMENT,  JUNE  TEKM,  1876. 


series],  47.)  The  only  evidence  to  which  we  can  give  credence 
going  to  rebut  that  presumption  in  this  case,  consists  of  the  same 
course  of  conduct  between  Singer  and  Mrs.  Foster  as  that  which 
preceded  Singer's  divorce,  namely,  cohabitation,  and  acts  proving 
that  Singer  recognized  Mrs.  Foster  and  held  her  out  to  the  world 
as  his  wife,  coupled  with  his  promise  to  marry  her  when  he  should 
have  obtained  a  divorce  from  his  wife,  made  at  the  commencement 
of  the  adulterous  connection  between  them  ;  that,  we  think,  is  not 
sufficient.  The  concubinage  which  existed  for  so  long  a  period 
cannot  be  transformed  into  matrimony  by  evidence  which  falls 
short  of  establishing  the  fact  of  an  actual  contract  of  marriage. 
Such  a  contract,  it  is  true,  may  be  proved  by  circumstances,  but 
they  must  be  such  as  exclude  the  inference  or  presumption  that 
the  former  relation  continued,  and  satisfactorily  prove  that  it  had 
been  changed  into  that  of  an  actual  marriage  by  mutual  consent. 
(Per  Lord  CAMPBELL,  Queen  v.  Millis,  10  Cl.  &  Fin.,  749,  et  8e%.) 
That  such  a  contract  was  not  made  between  Singer  and  Mrs.  Foster 
is,  we  think,  satisfactorily  shown  by  proof  of  the  marriage  of  both 
Singer  and  Mrs.  Foster  with  third  persons  soon  after  their  separa- 
tion from  each  other.  We  cannot  raise  a  presumption  of  a  contract 
of  marriage  when  the  direct  consequence  of  so  doing  would  be  to 
involve  both  parties  to  it  in  the  crime  of  bigamy.  We  are  unable 
to  accept  the  testimony  of  Mrs.  Foster  that  she  married  her  present 
husband  under  the  belief  that  she  had  been  divorced  from  Singer. 
It  would  be  hard  to  believe,  if  uncontradicted ;  but  it  was  contra- 
dicted by  the  witness's  own  conduct  and  declarations,  especially  by 
the  certificate  of  her  marriage  with  Foster  under  her  maiden  name 
of  Sponsler,  which  states  that  it  was  her  first  marriage,  and  which 
she  received  and  kept ;  and  especially  by  her  sworn  statement  made 
in  the  complaint  in  an  action  brought  by  her  against  Singer  in 
1864,  after  her  marriage  with  Foster,  to  the  effect  that  she  began 
living  with  Singer  in  1836  under  the  inducement  of  his  promise 
that  he  would  marry  her  as  soon  as  he  could  obtain  a  divorce  from 
his  wife.  That  he  never  fulfilled  that  promise  by  any  formal  act, 
and  that  he  persistently  refused  to  do  that  which  Mrs.  Foster 
appears  to  have  regarded  as  essential  to  its  fulfillment,  namely, 
yield  his  consent  to  a  ceremonial  marriage. 
In  the  face  of  such  evidence  an  actual  marriage  between  Singe* 


EL  WELL  v.  SKIDDY.  73 

SECOND  DEPAKTMENT,  JUNE  TERM,  1876. 

and  Mrs.  Foster  seems  to  us  to  be  not  only  unproved,  but  extremelj 
improbable. 

The  order  appealed  from  must  be  affirmed,  with  costs 

BARNARD,  P.  J.,  concurred. 

Present  —  BARNARD,  P.  J.,  GILBERT  and  DYKMAN,  JJ. 

Order  of  surrogate  affirmed,  with  costs. 


JAMES  W.  ELWELL  AND  OTHERS,  KESPONDENTS,  v.  FRANCIS 

SKIDDY  AND  OTHERS,  APPELLANTS. 
Demurrage  —  when  party  not  entifted  to  —  Counter-claim. 

A  master  of  a  vessel  chartered  her  for  three  consecutive  voyages  to  Cuba  and 
return  to  New  York,  the  first  to  start  from  a  port  in  Canada,  the  outward  voy- 
ages to  be  with  sugar-box  shooks,  the  return  ones  with  sugar  and  molasses. 
The  charter  party  specified  a  certain  rate  of  freight  and  also  of  demurrage  and 
bound  the  cargo  to  the  performance  of  the  charter  by  the  charterer.  The  ves- 
sel was  detained  in  Cuba  by  the  custom  authorities  on  account  of  the  illegal  act 
of  the  master.  A  portion  of  the  cargo  was  also  seized  on  account  thereof  and 
its  release  could  only  be  obtained  by  the  payment  of  $2,559.38  by  the  agent  of 
the  charterer. 

Held,  that  the  master  was  not  entitled  to  demurrage  for  delay  occasioned  by  th« 
seizure  or  detention  of  the  vessel  for  his  own  unlawful  act. 

Held,  also,  that  a  counter-claim  to  a  claim  for  freight  thereunder,  could  be  sus- 
tained for  loss  occasioned  by  the  excessive  drainage  of  the  hogsheads  of  sugar 
caused  by  the  detention  of  the  vessel  after  a  full  cargo  had  been  obtained,  such 
detention  arising  from  the  illegal  act  of  the  master. 

Held,  also,  that  a  counter-claim  could  be  sustained  for  moneys  compulsorily  paid 
by  the  agent  of  the  charterer,  to  release  their  property  seized  because  of  the 
unlawful  act  of  the  master. 

APPEAL  from  an  order  denying  a  motion  for  a  new  trial  made  upon 
the  minutes,  and  from  a  judgment  entered  on  a  verdict  at  the  trial. 
The  plaintiffs  were  assignees  of  a  claim  for  freight  and  demurrage, 
claimed  to  be  due  to  the  owners  of  the  brig  Harry  Yirden.  The 
defendants  were  assignees  of  a  bill  of  lading  (held  for  advances)  and 
also  assignees  of  the  consignees,  of  the  cargo  brought  by  said  brig 
from  Cardenas  to  New  York.  The  master  of  the  brig  chartered 
her  for  three  voyages  to  Cuba  and  return  to  New  York,  the  first  to 
HUN— VOL.  VIII.  10 


74  EL  WELL  v.  SKIDDY. 

SECOND  DEPARTMENT,  JUNE  TERM,  1876. 

start  from  a  port  in  Canada,  the  outward  voyages  to  be  with  sugar- 
box  shooks,  the  return  ones  with  sugar  and  molasses.  The  charter 
party  specified  a  certain  rate  of  freight  and  also  for  demurrage  and 
bound  the  cargo  therefor.  The  master,  on  his  first  voyage,  on 
applying  for  his  consular  manifest,  stated  his  cargo  in  round  num- 
bers at  5,000  sugar-box  shooks,  and  this  number  was  accordingly 
inserted  in  the  consular  manifest.  He  actually  took  on  board, 
however,  as  shown  by  his  own  manifest,  7,730.  For  such  inaccu- 
racy or  discrepancy,  on  his  arrival  in  Cuba,  the  custom  authorities 
fined  the  master  twenty-five  dollars,  which  he  paid  ;  afterward  a 
further  fine  of  $568.06  was  imposed  on  account  thereof ;  payment 
was  refused,  but  a  bond  therefor  was  given  by  the  agent  of  the 
ship  and  the  charterer,  which  was  enforced  after  the  brig  sailed. 
On  the  next  voyage,  on  the  arrival  of  the  brig  at  Cardenas,  the 
Intendente  ordered  the  confiscation  of  the  2,730  shooks  in  excess  of 
the  consular  manifest,  to  relieve  which  the  charterers  had  to  pay 
$2,559.38  gold.  A  fine  equal  to  the  value  was  also  directed  to  be 
imposed  on  the  captain,  and  to  compel  its  payment  a  clearance  was 
refused  to  the  vessel,  and  it  was  detained  a  long  time  after  it  was 
fully  laden,  by  reason  whereof  the  sugar  sweltered  and  wasted  so 
as  to  cause  a  loss,  as  claimed,  of  nine  and  twenty-six  one  hun- 
dredths  per  cent,  whereas  the  average  on  such  voyages  was  only 
from  three  to  four  per  cent,  causing  a  damage  claimed  to  be 
$2,397.60  gold. 

Joshua,  M.  Van  Cott  and  James  K.  Hilly  for  the  appellants. 
Benedict,  Toft  &  Benedict,  for  the  respondents. 

DTKMAN,  J. : 

This  cause  was  tried  at  the  Circuit,  and  at  the  close  of  the  testi- 
mony on  both  sides  the  court  directed  a  verdict  for  the  plaintiff, 
which  included  freight,  demurrage,  and  interest,  and  excluded  the 
claim  of  the  defendants  upon  their  counter-claim.  This  verdict  is 
not  founded  upon  any  promise  of  the  defendants,  or  either  of  them, 
for  the  court  refused  to  submit  any  question  of  fact  to  the  jury. 
We  must,  therefore,  assume  that  there  was  no  such  promise. 

The  defendants  were  the  assignees  of  the  consignees  of  the  bil 


EL  WELL  v.  SKIDDY.  75 

SECOND  DEPARTMENT,  JUNE  TEEM,  1876. 

of  lading  for  the  cargo  of  sugar  brought  to  New  York  from  Car- 
denas on  the  second  voyage  of  the  vessel  under  the  charter  party. 
They,  therefore,  stood  in  the  place  of  the  consignees,  and  as  they 
accepted  the  goods  they  became  liable  for  the  freight.  (Hinsdell 
v.  Weed,  5  Denio,  172 ;  3  Kent  Com.,  221 ;  Abb.  on  Ship,  [by 
Story],  284,  §  4.)  If,  therefore,  nothing  more  was  included  in  this 
verdict,  it  would  only  be  necessary  to  examine  the  question  arising 
upon  the  defendants'  counter-claim.  But  the  court  included  in  the 
verdict  the  claim  for  demurrage,  and  it  becomes  necessary  to  deter- 
mine whether  the  defendants  are  liable  for  this  charge. 

This  will  depend  upon  the  question  whether  the  vessel  was 
detained  by  the  freighter  or  his  agents  or  consignees,  beyond  the 
time  allowed  by  the  charter  party.  The  detention  complained  of 
took  place  on  the  second  voyage  of  the  vessel  to  the  island  of  Cuba. 
The  vessel  arrived  at  Cardenas  in  March,  1870,  about  the  middle 
of  the  month,  and  was  loaded  and  ready  to  sail  about  the  middle 
of  April  following.  It  was  agreed  that  twenty  lay  days  were  con- 
sumed on  the  second  trip.  There  is  some  little  discrepancy  in  the 
case  respecting  the  date,  but  this  is  not  very  important.  The 
vessel  was  detained  from  the  time  she  loaded  in  April  until  the 
sixteenth  day  of  June  following.  That  detention  was  for  the  fol 
lowing  reasons  : 

The  first  cargo  under  the  charter  party  was  taken  on  at  Pierre- 
ville,  in  Canada,  and  consisted  of  sugar-box  shocks.  As  this  place 
was  in  the  district  of  Quebec,  the  residence  of  a  Spanish  consul, 
it  became  necessary  for  the  captain  of  the  vessel  to  obtain  from  the 
Spanish  consul  at  that  place  a  consular  manifest  of  bis  cargo.  While 
the  vessel  was  taking  on  the  cargo,  the  captain  made  an  effort  to 
find  the  Spanish  consul  at  Quebec,  but  he  had  gone  to  Montreal, 
and  he  thereupon  sent  to  Montreal  for  his  consular  manifest,  and 
stated  his  cargo,  in  round  numbers,  at  5,000  sugar-box  shocks. 
This  r.umber  was  accordingly  inserted  in  the  consular  manifest. 
The  number  actually  taken  on  was  7,730.  When  the  vessel  arrived 
in  Cardenas,  the  captain  presented  to  the  custom-house  officer  the 
consular  manifest,  whnh  was  inaccurate,  of  course,  and  called  for 
only  5,000  shocks,  and  also  his  own  manifest,  which  stated  the  true 
number  at  7,730.  By  such  inaccuracy  the  captain  incurred  a  fine 
of  twenty  rive  dollars,  which  was  oaid  by  Mr.  Bacot,  who  was  the 


76  fcLWELL  v.  SKIDDY. 

SECOND  DEPARTMENT,  JUNE  TERM,  1876. 

agent  both  of  the  ship  and  the  charterer.  Afterward  the  custom- 
house officers  imposed  on  the  captain  a  further  fine  of  $5G8.06. 
Payment  of  this  fine  was  refused,  but  Mr.  Bacot  gave  a  bond  for 
its  payment,  if  it  should  be  enforced  by  the  intendente.  After  the 
vessel  sailed,  the  fine  was  enforced  and  paid  by  Mr.  Bacot.  The 
vesse  arrived  in  Cardenas  on  her  second  voyage  in  March,  and  the 
intendente  ordered  the  confiscation  of  the  2,730  shocks,  that  being 
the  number  in  excess  of  the  number  called  for  by  the  consular 
manifest,  and  a  fine  equal  to  their  value  to  be  imposed  on  the  cap- 
tain, and  in  order  to  compel  the  payment  of  the  fine  by  the  captain 
a  clearance  was  refused  to  the  vessel.  The  captain  resisted  and 
appealed  to  the  higher  authorities,  who,  after  a  delay  of  two  months, 
allowed  the  vessel  to  be  cleared,  and  she  sailed  on  her  second  return 
voyage  on  the  sixteenth  day  of  June. 

Now  whatever  else  may  be  said  about  this  delay  or  the  cause  of 
it,  or  the  merits  of  the  controversy  that  caused  it,  it  cannot  be 
said  that  it  was  caused  by  the  defendants  or  their  consignor  or  his 
agent ;  and  as  unreasonable  detention  of  the  vessel  by  the  freighter 
or  his  consignee  lies  at  the  foundation  of  all  liability  to  the  owner 
for  demurrage,  it  must  follow  that  no  such  liability  was  shown  in 
this  case.  So  far  from  the  facts  showing  any  detention  of  the 
vessel  by  the  freighter  or  his  consignees,  they  show  that  the  deten- 
tion was  caused  solely  by  a  breach  of  the  revenue  laws  of  the 
island  of  Cuba  by  the  captain  of  the  vessel,  and  that  such  breach 
was  willful  and  intentional.  It  is  no  answer  to  this  to  say  that  the 
Cuban  authorities  visited  upon  this  vessel  unusual  and  extraor- 
dinary penalties  for  this  breach  of  their  revenue  laws.  It  will  not 
do  for  the  captain  to  say,  it  is  true  I  committed  a  breach  of  the 
revenue  laws  but  I  ought  to  have  been  let  oflf  with  a  fine  of  twenty- 
five  dollars,  and  all  beyond  that  is  improper  and  illegal.  Let  it  be 
conceded  that  all  this  is  so,  that  does  not  change  the  matter  at  all. 
The  Cuban  authorities  treated  the  conduct  of  the  captain  as  an 
attempt  to  perpetrate  a  fraud  upon  the  revenue  laws,  and  did  what 
was  done  to  detain  the  vessel  for  that  reason.  That  was  the  proxi- 
mate and  sole  cause  of  the  delay. 

it  follows,  from  this  view,  that  the  item  of  demurrage  cannot 
be  recovered  against  the  defendants,  and  that  there  must  be  a  new 
trial. 


EL  WELL  v.  SKIDD  Y.  77 

SECOND  DEPARTMENT,  JUNE  TERM,  1876. 

The  court  on  the  trial  rejected  the  defendants'  counter-claim  foi 
damages ;  and  as  that  question  will  again  be  presented  on  the  new 
trial,  it  is  proper  that  we  should  settle  it  so  far  as  we  can  do  so. 
The  first  item  of  this  counter-claim  arises  out  of  the  following  facts : 

The  Intendente  imposed  a  fine  upon  the  captain  for  infringements 
imputed  to  him  in  his  manifest,  owing  to  the  difference  existing 
between  the  two,  as  has  been  before  stated,  and  the  2,730  box 
shocks,  which  gave  rise  to  the  infringement  attributed  to  the  cap- 
tain, were  seized,  the  seizure  approved  and  an  embargo  ordered  to 
be  laid  upon  them,  and  Mr.  O'Callahan,  the  owner,  was  required 
to  give  up  the  shooks  or  pay  their  equivalent  in  money.  Proper 
resistance  was  made  by  Mr.  Bacot  on  behalf  of  Mr.  O'Callahan, 
but  no  effect  was  produced,  and  an  order  of  attachment  was  issued 
and  property  up  to  the  amount  of  this  claim  was  levied  on  a  lot  of 
sugar  in  a  lighter,  and  the  same  was  stopped  in  the  bay.  At  this 
time,  and  compelled  by  these  measures,  this  sum  was  paid  into  the 
treasury  of  the  custom-house,  under  protest,  and  reserving  all 
rights  against  the  vessel  and  owners.  It  appears  from  the  case 
that  there  was  no  way  of  avoiding  such  payment  as  the  treasury, 
in  such  cases,  admits  no  application  until  after  payment. 

We  think  these  facts  show  that  these  goods  were  seized,  their 
payment  compelled  by  the  fault  of  the  captain,  and  that  this  is  a 
well  recognized  ground  of  liability.  (Abbott  on  Shipping,  383; 
Maclalahan  on  Shipping  [2d  ed.],  388 ;  Gosling  v.  Higgins,  1 
Camp.,  451 ;  Howland  v.  Greenway,  22  How.  [U.  S.],  491.)  We 
think,  therefore,  that  the  court  below  fell  into  an  error  in  refusing 
to  charge  the  jury  as  requested,  that  the  defendants  were  entitled  to 
recoup  or  set-off  against  the  freight  the  sum  the  charterer  was  obliged 
to  pay  to  procure  release  of  his  sugar-box  shooks,  with  interest. 

The  second  item  in  the  defendants'  counter-claim  is  the  damage 
arising  from  the  excessive  drainage  from  the  hogsheads  of  sugar, 
arising  from  the  length  of  time  which  elapsed  between  the  ship- 
ment and  delivery  of  the  sugar.  The  facts,  out  of  which  this  claim 
arises,  have  been  already  stated.  In  order  to  compel  the  payment 
of  the  fine  imposed  upon  the  captain  for  the  infringements  imputed 
to  him  in  his  manifests,  a  clearance  was  refused  to  his  vessel,  and 
she  was  not  allowed  to  go  to  sea  until  about  the  middle  of  June. 
During  all  this  time  the  sugar  sweltered  and  roasted,  and  caused 


78  VROOMAN  v.  TURNER. 

SECOND  DEPARTMENT,  JUNE  TERM,  1876. 

the  loss  which  forms  the  basis  of  this  item.  As  this  waste  waa 
caused  by  the  unwarranted  delay,  which  we  have  before  seen  waa 
the  fault  of  the  captain,  we  think  the  court  below  also  fell  into  an 
error  in  refusing  to  charge  as  requested,  that  the  defendants  were 
entitled  to  set  off  or  recoup  against  the  freight  the  damage  to,  and 
loss  on  the  cargo  of  sugar,  occasioned  by  the  detention  of  the  ves- 
sel after  a  full  cargo  had  been  shipped  and  the  vessel  was  ready  to 
put  to  sea. 

If  this  loss  had  been  caused  by  a  voluntary  delay  to  sail,  the  lia- 
bility of  the  owners  would  not  be  disputed,  and  we  do  not  see  how 
the  plaintiffs  are  in  any  better  position  when  the  delay  was  caused 
by  the  fault  of  the  captain.  The  delay  was  a  breach  of  duty  as 
well  as  a  breach  of  contract,  and  is  not  excused  by  the  act  of  God, 
the  perils  of  the  sea,  or  the  act  of  a  public  enemy. 

In  the  case  of  Hinsdell  v.  Weed  (5  Denio,  172)  Judge  McKissocK 
held  that  the  consignee  may  recoup  the  damage  on  account  of  the 
property  not  delivered  in  the  action  against  him  for  freight,  and 
this  decision  is  referred  to  with  approbation  in  the  case  of  Davis 
v.  PaUison  (24  N.  Y.,  324). 

The  judgment  must  be  reversed  and  a  new  trial  granted. 

Present  —  BAENABD,  P.  J.,  GILBERT  and  DYKMAN,  JJ. 

Judgment  and  order  denying  new  trial  reversed  and  new  trial 
granted,  costs  to  abide  event. 


CHARLES  W.  VROOMAN,  GUARDIAN,  ETC.,  RESPONDENT,  v. 
HARRIET  B.  TURNER,  WIFE  OF  THOMAS  C.  TURNER, 
IMPLEADED  WITH  CHARLES  E.  EVANS  AND  OTHERS,  APPEL- 
LANT. 

Grantee  —  assumption  of  mortgage  by  —  liable  to  pay,  although  her  grantor  was  not — 

Coverture  no  defense. 

1.  executed  a  mortgage  on  certain  premises  to  B.,  and  afterward  sold  and  con- 
Teved  them  to  C. ,  and  by  various  mesne  conveyances  they  came  to  T.,  a  married 
woman.  In  none  of  the  conveyances  except  the  one  to  T,  was  there  any  covenant 
by  the  grantee  to  pay  said  mortgage.  Held,  that  T.  was  liable  on  her  covenant. 
Further,  that  her  coverture  was  no  defense  to  the  action,  as  the  liability  waa 
contracted  upon  the  purchase  of  real  estate  in  her  own  name,  and  which  thu§ 


VROOMAN  v.  TURNER.  79 

SECOND  DEPARTMENT,  JUNE  TERM,  1876. 

became  her  separate  estate,  and  her  covenant  was  a  contract  to  pay  a  portion 
of  the  purchase-money,  and  was,  therefore,  for  the  benefit  of  her  separata 
estate. 

APPEAL  by  the  defendant  Harriet  B.  Turner,  wife  of  Thomas  C. 
Turner,  from  so  much  of  a  judgment  of  foreclosure  and  sale, 
entered  with  the  clerk  of  Kings  county,  January  29,  1876,  as 
directed  that  she  should  pay  any  deficiency. 

The  action  was  brought  for  the  foreclosure  of  a  mortgage  made 
by  Charles  E.  Evans  to  John  W.  Eddy  for  $5,500  on  property  in 
Brooklyn.  Eddy  assigned  the  mortgage  to  Robert  R.  Rhodes, 
guardian,  who  assigned  it  to  this  plaintiff. 

Evans  conveyed  the  mortgaged  premises  to  Harry  W.  Mitchell ; 
Mitchell  to  Edward  P.  Cone ;  Cone  to  Jane  L.  Eaton ;  and  Eaton 
to  Daniel  A.  Sanborn.  In  none  of  these  deeds  did  the  grantee 
assume  to  pay  the  mortgage. 

Daniel  A.  Sanborn  conveyed  the  premises  to  the  appellant  Har- 
riet B.  Turner. 

"  Subject,  nevertheless,  to  the  payment  of  a  certain  indenture  of 
mortgage,  bearing  date  the  5th  day  of  August,  1873,  made  and  exe- 
cuted by  Charles  E.  Evans  to  John  W.  Eddy,  to  secure  the  princi- 
pal sum  of  $5,500  and  the  interest  thereon,  and  recorded  in  the 
office  of  the  register  of  the  county  of  Kings,  in  liber  number  1,166 
of  mortgages,  page  twenty-two,  on  the  9th  day  of  August,  A.  D. 
1873,  which  mortgage  the  party  hereto  of  the  second  part  hereby 
covenants  and  agrees  to  assume  to  pay  off  and  discharge,  the  same 
forming  part  of  the  consideration  thereof  having  been  deducted 
therefrom." 

The  only  question  was  as  to  the  liability  of  the  appellant  for 
deficiency. 

The  case  was  tried  before  John  P.  Rolfe,  referee,  who  decided  in 
favor  of  the  plaintiff. 

Edwwrd  T.  Bwrtlett)  for  the  appellant. 
N.  H.  Clement,  for  the  respondent 

DTKMAN,  J. : 

On  the  5th  day  of  August,  1873,  the  defendant  Charles  E.  Evani 
made  and  executed  a  mortgage  upon  certain  lands  and  premises,  of 


80  VROOMAN  v.  TURNER. 

SECOND  DEPARTMENT,  JUNE  TERM,  1876. 

which  he  was  then  the  owner,  in  the  city  of  Brooklyn,  to  secure 
the  payment  of  $5,500.  After  the  execution  and  recording  of  this 
mortgage,  the  premises  were  sold  and  conveyed  by  the  said  Charles 
E.  Evans,  and  came  by  several  mesne  conveyances  to  one  Daniel 

A.  Sanborn.     In  neither  of  the  deeds  of  conveyance  did  the  grantees 
assume  the  payment  of  the  mortgage.     On  the  6th  day  of  April, 
1875,  Daniel  A.  Sanborn  conveyed  the  same  premises  to  Harriet 

B.  Turner,  the  defendant,  who  was  then  a  married  woman.     This 
deed  conveys  the  premises  subject  to  the  mortgage,  and  contains 
the  following  clause :  "  which  mortgage  the  party  hereto,  of  the 
second  part,  hereby  covenants  and  agrees  to  assume,  pay  off,  and 
discharge,  the  same  forming  a  part  of  the  consideration  thereof, 
having  been  deducted  therefrom."     This  deed  was  accepted  and 
recorded. 

This  action  is  now  commenced  to  foreclose  the  mortgage,  and 
charge  the  defendant  Harriet  B.  Turner  with  the  payment  of  any 
deficiency,  provided  the  proceeds  of  the  sale  shall  be  insufficient  to 
pay  the  mortgage.  Judgment  has  been  rendered  in  favor  of  the 
plaintiff  for  the  foreclosure  of  the  mortgage,  and  for  deficiency 
against  the  defendant  Harriet  B.  Turner,  who  has  appealed  from 
the  judgment. 

It  is  now  claimed  that  the  portion  of  the  judgment  which  holds 
the  defendant  Harriet  B.  Turner  personally  liable  for  deficiency  is 
obnoxious  to  the  principles  of  law  enunciated  by  the  Court  of 
Appeals  in  the  case  of  Trotter  v.  Hughes  (12  N.  Y.,  74).  It  is 
claimed  that  that  case  decided  that  where,  as  in  this  case,  the 
grantor  in  a  conveyance  is  not  personally  liable  to  the  holder  oi 
the  mortgage  to  pay  the  same,  his  grantee  is  not  liable,  although 
assuming,  in  terms,  to  pay  it. 

What  the  precise  state  of  the  law  is  in  this  State  which  is  to 
govern  this  case,  it  is  not  very  easy  to  determine.  Trotter  v. 
Hughes  seems  to  decide  all  that  is  claimed  for  it.  The  old  doctrine 
of  the  Court  of  Chancery  was,  that  where  a  grantee  in  a  deed 
assumed  the  payment  of  a  mortgage,  he  became  thereupon  the 
principal  debtor,  and  the  mortgagee  occupied  the  position  of 
surety,  and  the  mortgagee  was  permitted  to  resort  to  the  grantee 
to  recover  the  deficiency  after  applying  the  proceeds  of  the  sale  by 
virtue  of  the  doctrine  of  subrogation  in  equity,  by  which  the  cred- 


VROOMAN  v.  TURNER.  81 

SECOND  DEPARTMENT,  JUNE  TERM,  1876. 

itor  was  entitled  to  all  the  collateral  securities  which  the  debtor  had 
obtained  to  reinforce  the  primary  obligation,  and  Trotter  v.  Hughes 
seems,  by  the  reasoning  of  the  opinion,  to  have  been  decided  upon 
;hat  principle.  We  cannot,  however,  overlook  the  fact  that  in  that 
very  case  the  defendant  Hughes  had  not  undertaken  personally  to 
pay  the  mortgage  at  all,  and  the  decision  would  have  been  fully  as 
satisfactory  if  it  had  been  placed  npon  that  ground.  Upon  the 
questions  which  were  discussed  in  Trotter  v.  Hughes  there  was  a 
good  deal  of  conflict  of  judicial  opinion,  until  the  case  of  Lawrence 
v.  Fox  came  before  the  Court  of  Appeals  and  directly  involved  the 
question.  In  that  case  one  Holly  owed  the  plaintiff  $300 ;  he 
loaned  the  defendant  $300,  and  told  him  at  the  same  time  that  he 
owed  the  plaintiff  that  amount,  and  the  defendant  promised  Holly 
that  he  would  pay  that  amount  to  the  plaintiff  the  next  day.  The 
plaintiff  recovered  in  the  court  below,  and  the  Court  of  Appeals 
affirmed  the  judgment,  and  placed  its  decision  on  the  broad  ground 
that  if  one  person  makes  a  promise  to  another  for  the  benefit  of  a 
third  person,  that  third  person  may  maintain  an  action  on  the  prom- 
ise, although  he  was  not  privy  to  the  consideration. 

This  was  followed  by  the  case  of  Burr  v.  Beers  (24  N.  Y.,  178), 
where  it  was  held,  in  unqualified  terms,  that  a  mortgagee  may 
maintain  a  personal  action  against  a  grantee  of  the  mortgaged 
premises  who  has  assumed  to  pay  the  incumbrance. 

As  before  observed,  the  case  of  Trotter  v.  Hughes  would 
be  more  satisfactory  if  the  decision  in  favor  of  the  defendant 
had  been  placed  upon  the  ground  that  the  defendant  had  not 
assumed  the  payment  of  the  mortgage  and  had  not  become 
liable  to  pay  it  in  any  way,  and  the  action  could  not  be  main- 
tained against  him  for  that  reason.  But  whatever  else  may 
be  said  about  that  case,  it  cannot  be  considered  as  authority 
since  the  case  of  Burr  v.  Beers,  where  the  Court  of  Appeals 
broke  entirely  away  from  the  old  equitable  doctrine,  which  has 
been  alluded  to,  and  placed  the  case  upon  the  broad  principle 
that  if  one  person  make  a  promise  to  another  for  the  benefit  of  a 
third  person,  that  third  person  may  maintain  an  action  upon  the 
promise.  As  this  must  be  taken  for  the  law  of  this  State  to-day,  it 
certainly  can  make  no  difference  in  this  case  whether  Daniel  A. 
Sanborn  was  personally  liable  to  pay  the  mortgage  in  question  or 
HUN— VOL.  VIII.  11 


82  VROOMAN  v.  TURNER. 

SECOND  DEPARTMENT,  JUNE  TERM,  1876. 

not.  As  in  the  case  of  Burr  v.  Beers,  so  in  this  case,  the  amonnt 
<lue  upon  the  mortgage  was  left  in  the  hands  of  the  purchaser,  and 
she  undertook  to  pay  it ;  the  assumption  clause  in  that  deed  is  sub- 
stantially the  same  as  in  this.  The  defendant,  Harriet  B.  Turner, 
was  bound  to  pay  the  whole  consideration  for  the  premises,  but  by 
the  assumption  clause  in  the  deed  a  portion  of  it  was  set  apart  for 
the  payment  of  this  mortgage,  and  she  undertook  to  pay  it.  This 
was  simply  an  agreement  to  pay  her  own  debt,  and  there  is  every 
reason,  both  in  law  and  morals,  why  she  should  do  so ;  she  bought 
this  land  for  a  stipulated  price,  and  instead  of  paying  it  all  to  her 
grantor  she  retained  a  part  of  it,  and  agreed  to  pay  that  part  upon 
this  mortgage.  As  we  have  no  controlling  authority  to  prevent  us 
from  so  doing,  we  have  no  hesitation  in  holding  that  this  rendered 
her  liable  to  pay  the  mortgage. 

We  think  that  the  coverture  of  the  defendant  was  no  defense  to 
this  action.  The  liability  was  contracted  upon  the  purchase  of  real 
property  by  the  defendant  in  her  own  name,  and  which  thus 
became  her  separate  estate.  It  was  a  contract  to  pay  a  portion  of 
the  purchase  money,  and  was  therefore  for  the  benefit  of  her  separ- 
ate estate.  (Ballin  v.  Dillaye,  37  N.  Y.,  35.) 

The  judgment  must  be  affirmed. 

Present  —  BARNARD,  P.  J.,  GILBERT  and  DYKMAH,  JJ. 
Judgment  and  order  denying  new  trial  affirmed,  with  costs. 

Since  the  decision  of  Merrill  v.  Green  (55  N.  Y.,  270),  it  seems  to  be  question- 
able whether  a  contract  beneficial  to  a  third  party  can  be  enforced  by  him  in 
any  case,  unless: 

1st.  It  be  therein  expressly  stated  to  have  been  made  for  his  benefit;  or, 
2d.  The  party  assuming  the  obligation  has  received  money  or  property  out  of 
which  to  pay  it— [REP. 


PICKETT  v.  PEOPLE.  83 

SECOND  DEPARTMENT,  JUNE  TERM,  1876. 

THOMAS  PICKETT,  PLAINTIFF  IN  ERROR,  v.  THE  PEOPLE 
OF  THE  STATE  OF  NEW  YORK,  DEFENDANTS  IN  ERROR. 

Qa/mbler — indictment  of,  sufficiency  of  averments  in —  Conviction,  when  not  to  bt 
set  aside —  chapter  504  of  1851  —  chapter  214  of  1855. 

An  indictment,  charging  that  the  defendant  "did  willfully,  unlawfully  and 
knowingly  sell,  vend  and  cause  to  be  sold  and  vended  what  are  commonly 
known  and  called  lottery  policies,  the  particulars  whereof  are  unknown  to  the 
jurors  aforesaid,  and  did  then  and  there  sell  and  vend  divers  of  such  lottery 
policies  to  divers  persons  to  the  jurors  aforesaid  unknown,"  held,  sufficient; 
that  only  reasonable  certainty  is  required;  that  the  facts  stated  to  be  unknown 
were  only  matters  of  description  and  not  necessary  to  the  accusation,  and  there 
was  no  danger  of  the  defendant  being  tried  thereunder  for  an  offense  for  which 
he  was  not  indicted;  or,  being  convicted,  any  difficulty  in  pleading  the  convic- 
tion and  judgment  in  bar  of  another  prosecution  for  the  same  offense. 

Further,  that  although  the  proofs  might  not  be  very  strong,  yet,  where  the  jury 
have  found  the  facts,  and  as  found  they  are  sufficient  to  sustain  the  conviction, 
it  will  not  be  set  aside. 

WRIT  of  error  to  the  Court  of  Sessions  of  Kings  county,  to 
review  the  conviction  of  the  defendant  as  a  common  gambler." 

The  defendant  was  convicted  of  being  a  common  gambler  in  sell- 
ing or  vending  what  are  commonly  known  as  lottery  policies,  under 
chapter  504,  Laws  of  1851,  as  amended  by  chapter  214,  Laws  of 
1855,  and  was  sentenced  to  imprisonment  for  the  term  of  three 
months  in  the  Kings  county  penitentiary. 

Peter  Mitchell,  for  the  plaintiiF  in  error. 
Thomas  8.  Moore,  for  the  defendants  in  error. 

DTKMAN,  J. : 

The  defendant  has  been  indicted  and  convicted  as  a  common 
gambler  under  the  provisions  of  our  statute.  The  indictment  fol- 
lows substantially  the  language  of  the  statute,  and  as  a  general  rule 
that  is  sufficient  in  cases  of  misdemeanor.  Reasonable  certainty, 
however,  is  required  in  stating  the  offense  charged,  having  special 
reference  to  the  rights  and  interests  of  the  accused,  but  this  rule 
must  not  be  carried  so  far  as  to  defeat  the  ends  of  justice ;  and 
therefore  the  grand  jurors  are  allowed  to  state  that  a  particular  fact 
not  vital  to  the  accusation  is  to  them  unknown.  Under  this  gen- 
eral rnle  of  law  it  has  been  held  that  where  an  indictment,  after 


84  PICKETT  v.  PEOPLE. 

SECOND  DEPARTMENT,  JUNE  TERM,  1876. 

stating  the  fact  of  the  lottery,  contained  an  averment  that  "  a 
more  particular  description  of  which  said  lottery  is  to  the  jurors 
aforesaid  unknown  ; "  the  indictment  was  sufficient.  (People  v. 
Taylor,  3  Den.,  91.) 

The  indictment  in  this  case  charges  that  the  defendant  "did 
willfufvy,  unlawfully  and  knowingly  sell,  vend  and  cause  to  be  sold 
and  vended  what  are  commonly  known  and  called  lottery  policies, 
the  particulars  whereof  are  unknown  to  the  jurors  aforesaid,  and 
did  then  and  there  sell  and  vend  divers  of  such  lottery  policies  to 
divers  persons  to  the  jurors  aforesaid  unknown,"  and  we  think  this 
is  sufficient.  The  facts  which  are  here  stated  to  be  unknown  are 
only  matters  of  description,  and  not  at  all  necessary  to  the  accusa- 
tion. There  was  no  danger  under  this  indictment  that  the  defend- 
ant might  be  tried  for  an  offense  for  which  he  was  not  indicted, 
and  being  convicted  there  will  be  no  difficulty  in  pleading  the  con- 
viction and  judgment  in  bar  of  another  prosecution  for  the  same 
offense. 

The  defendant  was  convicted  upon  the  counts  that  contained  the 
averments  above  mentioned. 

Upon  the  merits  the  case  was  very  fairly  and  very  carefully  pre- 
sented to  the  jury  by  the  charge  of  the  court,  and  the  jury  found 
the  defendant  guilty,  and  we  think  there  was  evidence  enough  to 
sustain  the  conviction. 

The  proof  was  not  very  strong,  and  it  would  doubtless  have  been 
more  satisfactory  to  the  court  and  jury  if  it  had  been  stronger.  But 
we  must  remember  that  unlike  the  transactions  in  the  life  of  Saint 
Paul,  which  he  recounted  before  King  Agrippa,  these  things  were 
done  in  a  corner.  The  ways  of  vice  and  crime  are  dark  and  myste- 
rious, and  crimes  are  perpetrated  in  thievish  corners,  away  from  the 
eyes  of  honest  men.  While,  therefore,  we  must  be  careful  and  see  to 
it,  that  convictions  are  not  secured  upon  improper  or  insufficient 
testimony,  yet  we  must  not  ask  too  much.  If  a  jury  as  in  this  case 
has  found  the  facts,  and  as  so  found  they  are  sufficient  to  sustain 
the  conviction,  the  appellate  tribunal  cannot  interfere  on  that  ground. 

The  conviction  and  judgment  must  be  affirmed. 

Present  —  BARNARD,  P.  J.,  GILBERT  and  DYKMAN,  JJ. 
Conviction  affirmed. 


DOUGLASS  7;.  REILLY.  85 

SECOND  DEPARTMENT,  JUNE  TERM,  1876. 


JOHN    D.    DOUGLASS    AND   OSCAE    DOUGLASS,  APPEL- 
LANTS, v.  JOHN  B.  KEILLY,  RESPONDENT. 

Justice's  Oourt  —  Brooklyn  —  §  16,  chap.  102,  Laics  of  1850 — County  Court — no 
power,  on  motion,  to  vacate  judgment  of  Justice'*  Court. 

A.  summons  having  been  issued  in  a  civil  action  by  a  justice  of  the  peace  of  the 
town  of  New  Lots,  Kings  county,  and  personally  served  oil  the  defendant  in 
the  city  of  Brooklyn,  in  said  county,  of  which  he  was  a  resident,  and  on  default 
judgment  entered",  a  transcript  thereof  filed,  and  the  judgment  docketed  against 
him  in  the  clerk's  office  of  said  county,  and  execution  issued  thereon;  and  the 
County  Court  having  on  an  order  to  show  cause  directed  that  the  said  tran- 
script be  set  aside  and  the  clerk  of  Kings  county  cancel  the  judgment  of  record: 

Held,  that  section  16  of  chapter  102,  Laws  of  1850,  which  declares:  "No  justice 
of  the  peace,  other  than  the  police  justice  and  the  justices  elected  in  the  city  of 
Brooklyn,  shall  have,  or  exercise  any  civil  or  criminal  jurisdiction  in  said 
city,"  was  intended  to  give  to  the  police  justices  and  justices  elected  in  Brook- 
lyn exclusive  jurisdiction  to  hold  courts  in  that  city,  but  not  to  take  away  the 
general  jurisdiction  of  the  justices  of  the  peace  of  the  county,  to  try  transitory 
actions  within  their  jurisdiction  in  their  own  towns.  That  the  justice  in  this 
case  exercised  no  jurisdiction  in  the  city  of  Brooklyn.  He  simply  issued  a 
summons  in  the  town  of  New  Lots,  out  of  the  city,  and  upon  proper  return  of 
personal  service  proceeded  with  the  case  in  his  own  town,  and  entered  j>  dgment, 
the  constable's  return  giving  him  jurisdiction  of  the  person  of  the  defendant. 

Held,  further,  that  the  County  Court  had  no  power,  on  motion,  to  se*.  aside  the 
transcript  and  vacate  the  judgment;  that  the  remedy  of  the  defendmt  was  by 
appeal. 

APPEAL  from  an  order  of  the  County  Court  of  King.*  county, 
entered  on  a  motion  to  vacate  the  docket  of  a  judgment  rendered 
by  a  justice  of  the  peace  of  the  town  of  New  Lots,  made  upon  a 
transcript  thereof  filed  in  the  clerk's  office  of  said  county,  and  to 
6et  aside  the  execution  issued  thereon. 

The  summons  was  issued  in  a  civil  action  by  James  H.  Spencer, 
justice  of  the  peace,  in  the  town  of  New  Lots,  Kings  county,  and 
was  served  by  a  constable  on  the  defendant,  in  the  city  of  Brooklyn, 
in  said  county,  where  defendant  resided.  Judgment  was  entered 
by  default,  a  transcript  thereof  filed  and  the  judgment  docketed 
•gainst  the  defendant  in  the  Kings  county  clerk's  offic*,  And  exe 
cation  issued  thereon. 

D.  W.  Guernsey,  for  the  appellants. 
James  Troy,  for  the  respondent. 


86  DOUGLASS  v.  KEILLY. 

SECOND  DEPARTMENT,  JUNE  TERM,  1876. 

DYKMAN,  J. : 

On  the  27th  day  of  July,  1875,  the  plaintiffs  were  residents  of 
the  town  of  New  Lots,  in  Kings  county,  and  on  that  day  they 
applied  to  James  H.  Spencer,  a  justice  of  the  peace  of  that  town, 
for  a  summons  in  a  civil  action  against  the  defendant,  who  was  a 
resident  of  the  city  of  Brooklyn. 

The  summons  was  issued  in  the  usual  form  and  manner,  and  was 
made  returnable  before  the  said  justice,  at  the  town  of  New  Lots, 
and  was  personally  served  on  the  defendant  in  the  city  of  Brooklyn, 
by  a  constable  of  the  same  town  of  New  Lots ;  on  the  3d  day  of 
August,  1875,  the  return  day  of  the  summons,  it  was  returned  by 
the  said  constable  personally  served  on  the  defendant. 

The  defendant  did  not  appear,  and  on  proof  of  the  claim  the  jus- 
tice rendered  judgment  against  the  defendant  for  twenty-nine  dol- 
lars and  five  cents. 

The  justice  issued  a  transcript  of  the  said  judgment,  which  was 
filed  in  the  office  of  the  county  clerk  of  Kings  county  on  the  27th 
day  of  August,  1875,  and  judgment  was  docketed  thereon,  and  an 
execution  issued  to  the  sheriff  of  Kings  county. 

Upon  an  affidavit  setting  forth  substantially  these  facts,  a  motion 
was  made  before  the  county  judge  of  Kings  county  to  set  aside  the 
said  transcript,  judgment  and  execution.  This  motion  was  granted 
and  the  case  now  comes  before  us  on  appeal  from  that  order. 

This  order  is  now  claimed  to  be  proper  and  legal,  on  the  ground 
that  the  justice  of  the  peace  who  issued  the  summons  acquired  no 
jurisdiction  over  the  person  of  the  defendant.  This  claim  is 
founded  upon  the  provision  in  the  Laws  of  1850  (chap.  102,  § 
1 6),  that  "  no  justice  of  the  peace  other  than  the  police  justice/1 
elected  in  the  city  of  Brooklyn  shall  have  or  exercise  any  civil  01 
criminal  jurisdiction  in  said  city." 

We  think  this  provision  of  the  statute  has  no  applicability  to  the 
present  case. 

The  justice  of  the  peace  in  this  case  has  exercised  no  jurisdiction 
in  the  city  of  Brooklyn.  He  simply  issued  a  summons  in  a  civil 
action  in  the  town  of  New  Lots,  out  of  the  city,  and  delivered  it  to 
a  constable  for  service,  and  upon  the  proper  return  of  persona" 
service  proceeded  with  the  case  in  his  own  town,  and  entered  judg 
ment  in  the  action. 


GALLAHER  v.  VOUGHT.  87 

SECOND  DEPARTMENT,  JUNE  TERM,  1876. 

The  constable's  return  gave  the  justice  jurisdiction  of  the  person 
of  the  defendant,  and  there  is  no  claim  that  his  subsequent  pro- 
ceedings were  irregular.  Certainly,  it  cannot  be  pretended  that 
the  constable  had  no  power  to  serve  the  summons  on  the  defend 
ant  in  the  city  of  Brooklyn. 

The  provision  of  the  statute  was  intended  to  give  exclusive  juris- 
diction to  the  police  justices  and  the  justices  elected  in  the  city  of 
Brooklyn  to  hold  courts  in  the  city  of  Brooklyn,  and  not  to  take 
away  the  general  jurisdiction  of  the  justices  of  the  peace  of  the 
county  to  try  transitory  actions  within  their  jurisdiction  and  hold 
their  courts  in  their  own  towns.  (Blatchley  v.  Moser,  15  "Wend., 
218.) 

"We  also  think  that  the  county  judge  had  no  power  to  set  aside 
the  transcript  and  vacate  the  judgment  on  motion,  and  that  the 
remedy  of  the  defendant,  if  he  had  any,  was  by  appeal.  (N.  Y. 
and  Erie  R.  R.  Co.  v.  Purdy,  18  Barb.,  574.) 

The  order  of  the  county  court  should  be  reversed  with  costs  and 
disbursements. 

Present  —  BARNARD,  P.  J.,  GILBERT  and  DYKMAN,  J  J. 
Order  of  county  court  reversed  with  costs  and  disbursements. 


THEODORE    H.   GALLAHER,   APPELLANT,   v.   PELL  S.   0. 
VOUGHT,  RESPONDENT. 

Services  —  between  relatives  —  action  for  —  degree  of  consanguinity  necessary  to  <yra- 
ate  presumption  that  they  are  gratuitous. 

Where  services  are  rendered  by  one  person  for  another,  without  any  agreement 
in  respect  to  compensation  therefor,  the  law  will  ordinarily  imply  an  agreement 
to  pay  what  such  services  are  worth,  except  in  the  case  of  near  relatives  or  mem- 
bers of  the  same  family,  when  the  law  regards  such  services  as  acts  of  gratui- 
tous kindness  and  affection  ;  but  this  exception  cannot  be  extended  to  include 
a  case  where  the  defendant's  wife  and  the  plaintiff's  mother  were  cousins,  the 
relationship  between  the  parties  being  only  by  affinity. 

APPEAL  from  a  judgment  entered  upon  the  report  of  a  referee 
dismissing  the  plaintiff's  complaint,  with  costs. 


88  GALLAHER  v.  VOUGHT. 


SECOND  DEPARTMENT,  JUNK  TERM,  1876. 


This  was  an  action  to  recover  the  value  of  services  alleged  to 
have  been  rendered  by  the  plaintiff,  in  taking  care  of  the  defend- 
ant's sick  son,  performed  between  October,  1868,  and  October, 
1873.  One  of  the  defenses  thereto  set  up  in  the  answer  was  in 
these  words : 

And  defendant  for  further  answer  to  said  complaint  alleges  that 
said  plaintiif  being  a  relative  of  defendant's  wife,  and  out  of  employ- 
ment, and  having  no  means  and  no  place  to  stay,  requested  this 
defendant  to  let  him  come  and  stay  with  him  at  his  house  until  he- 
could  procure  some  employment,  and  voluntarily  offered  to  stay 
with  and  assist  in  serving  to  this  defendant's  said  son,  who  was 
unwell  and  confined  to  the  house,  while  so  there ;  that  the  defendant 
consented,  and  the  said  plaintiff  did  so  come  and  boarded  with  this 
defendant  for  a  long  time,  and  occasionally,  in  a  friendly  way,  while 
so  there,  did  stay  with  and  assist  in  taking  care  of  the  said  Niles 
F.  Vought,  but  without  any  agreement  on  the  part  of  this  defend- 
ant to  pay,  or  any  intention  on  the  part  of  the  said  plaintiff  that  he 
expected  pay  therefor ;  but  it  was  understood  to  be  done  as  a  friendly 
act,  and  in  consideration  of  such  board,  etc.,  only,  and  not  to  be  a 
charge  against  this  defendant. 

Eugene  B.  Travis,  for  the  appellant. 
Travis  &  Lent,  for  the  respondent. 

DTKMAN,  J. : 

Ordinarily  where  services  are  rendered  by  one  person  for  another 
without  any  agreement  in  respect  to  compensation,  the  law  will 
imply  an  agreement  to  pay  what  the  services  are  fairly  worth. 
There  is,  however,  a  well  recognized  exception  to  this  general  rule 
in  respect  to  services  rendered  by  near  relatives  and  members  of 
the  same  family,  on  the  ground  that  the  law  regards  such  services 
as  acts  of  gratuitous  kindness  and  affection,  and  the  referee  before 
whom  this  cause  was  tried  seems  to  have  supposed  that  this  case 
came  within  that  exception.  In  this  we  think  the  referee  has 
fallen  into  error. 

In  the  first  place,  the  uncontradicted  testimony  is  that  the 
defendant's  wife  and  the  plaintiff's  mother  are  cousins,  and  the 


GALLAHER  v.  VOUGHT.  89 

SECOND  DEPARTMENT,  JUNE  TERM,  1876. 

referee  has  no  proof  in  the  case  to  support  his  finding  that 
the  plaintiff  and  defendant's  wife  are  cousins. 

The  plaintiff  and  defendant  were  not,  therefore,  related  at  all, 
except  by  affinity,  and  we  think  such  relationship  not  sufficiently 
near  to  place  the  parties  within  the  exception.  We  have  been 
unable  to  find  any  reported  case  that  carries  the  doctrine  to  that 
extent.  In  fact,  although  the  elementary  writers  seem  to  lay 
down  the  exception  as  broadly  as  it  is  stated  above,  yet  all  the 
reported  cases  confine  it  to  cases  of  claims  between  members  of  the 
same  family,  and  the  courts  refuse  to  imply  a  promise  by  reason  of 
the  existence  of  the  family  relation. 

The  referee  cites  the  cases  of  Williams  v.  Hutchinson  (3  Comst., 
312)  and  Bowen  v.  Bowen  (2  Bradf.,  336).  In  the  first  of  these 
cases  the  parties  had  been  members  of  the  same  family,  and  the 
defendant  stood  in  loco  par entis  to  the  plaintiff,  and  in  the  others 
the  parties  were  brothers,  and  had  been  members  of  the  same 
family  during  the  time  of  the  services.  In  the  first  case  the  rule  is 
laid  down  as  follows:  "Under  certain  circumstances,  where  one 
man  labors  for  another,  a  presumption  of  fact  will  arise  that  the 
person  for  whom  he  labors  is  to  pay  him  the  value  of  his  ser- 
vices. It  is  a  conclusion  to  which  the  mind  readily  comes  from  a 
knowledge  of  the  circumstances  of  the  particular  case  and  the  ordi- 
nary dealings  between  man  and  man.  But  where  the  services  are 
rendered  between  members  of  the  same  family,  no  such  presumption 
will  arise."  And  this  case  and  the  case  of  Bowen  v.  Bowen  were 
disposed  of  on  that  ground.  Neither  one  of  them,  therefore,  are 
any  authority  for  the  decision  of  the  referee  in  this  case,  for  the 
reason  that  the  relation  of  the  parties  was  entirely  different. 
There  are  numerous  reported  cases,  both  in  this  country  and  in 
England,  holding  the  same  doctrine  as  these  two,  but  none  of  them 
sustain  the  decision  of  the  referee  in  this  case,  and  we  do  not  think 
his  report  can  stand  on  the  ground  on  which  he  has  put  it. 

We  do  not  think  that  the  relation  between  the  parties  to  this 
action  was  such  as  would  prevent  the  law  from  implying  an  agree- 
ment to  pay  for  services  rendered  by  the  plaintiff  for  the  defend- 
ant, and  the  question  in  the  case  therefore  is  whether  the  services 
of  the  plaintiff  were  performed  under  the  expectation  that  they 
wonld  be  paid  for,  or  whether  both  parties  expected  and  intended 
HUN— VOL.  VHI.  12 


90  GALLAHER  v.  VOUGHT. 


SECOND  DEPARTMENT.  JUNE  TERM,  1876. 


that  they  should  be  gratuitous.  The  testimony  is  quite  contradic- 
toiy  on  this  point,  and  the  referee  has  not  found  the  fact  either 
way.  In  his  first  report  he  finds  that  there  was  no  contract, 
expressed  or  implied,  that  the  plaintiff's  services  should  be  paid 
for.  Whether  there  was  an  implied  contract  is  not  a  question  of 
fact,  and  there  are  no  facts  found  in  the  first  report  that  will  sus- 
tain the  conclusion  of  law  that  the  complaint  should  be  dismissed. 

In  the  second  paper  signed  by  the  referee,  which  is  called  a  more 
detailed  finding  of  facts,  the  referee  finds  that  the  plaintiff,  in  the 
spring  of  1870,  was  out  of  employment  and  somewhat  destitute, 
but  there  is  not  the  slightest  evidence  to  support  the  finding.  He 
finds  also  that  the  plaintiff  rendered  services  during  all  the  time  he 
was  at  the  defendant's,  down  to  June,  1874,  but  does  not  find  that 
there  was  no  expectation  of  compensation.  He  says  he  cannot 
resist  the  conviction  that  the  services  were  performed  without  the 
expectation  of  receiving  any  thing  more  for  his  services  than  a 
comfortable  home,  with  such  pecuniary  aid  as  the  generosity  of  the 
defendant  might  prompt  him  to  bestow;  but  we  do  not  think  this 
is  a  finding  of  fact. 

It  is  rather  a  finding  of  the  referee's  conviction.  The  evidence 
was  contradictory,  and  the  plaintiff  was  entitled  to  a  distinct  find- 
ing on  this  point.  It  is  quite  possible  that  services  may  be  ren- 
dered among  persons  not  related  to  each  other  at  all  under  such 
circumstances  that  the  law  will  not  imply  an  agreement  for  com- 
pensation, and  if  the  services  of  the  plaintiff  were  so  rendered  for 
the  defendant  he  is  not  entitled  to  recover :  and  if  they  were  not, 
then  he  is  entitled  to  recover.  This  question  has  not  been  deter- 
mined, and  can  be  determined  only  by  the  trial  court.  We  cannot 
determine  it  here,  and  there  must  be  a  new  trial  for  that  purpose. 

New  trial  granted  at  the  Circuit,  costs  to  abide  the  event. 

GILBERT,  J.,  concurred. 

Present  —  BAKNAKD,  P.  J.,  GILBERT  and  DTKMAN,  JJ. 

Judgment  reversed  and  new  trial  granted  at  Circuit,  costs  to 
ibide  event. 


MATTER  OF  N.  Y.  CATHOLIC  PROTECTORY.         91 

SECOND  DEPARTMENT,  JUNE  TERM,  1876. 


IN  THE  MATTER  OF  THE  PETITION  OF  THE  NEW  YORK  CATHO- 
LIC PROTECTORY  FOR  AN  ORDER  DIRECTING  THE  BOARD 
OF  SUPERVISOES  OF  THE  COUNTY  OF  WESTCHES- 
TER  TO  REFUND  THE  AMOUNT  OF  A  TAX  COLLECTED  FROM  IT. 

County  Court  —  Power  to  order  tax  to  be  refunded  —  Assessors — acts  of,  reviewable  by 
—  §  3,  chap.  647  of  1866  —  §  5,  chap.  855  of  1869  —  chap.  695  of  1871. 

• 
Where  lands  used  for  the  charitable  purposes  of  an  association  are  exempted  by 

statute  from  taxation,  and  the  assessors  of  the  town  in  which  they  lie  ille- 
gally and  improperly  assess  them,  the  County  Court,  on  application  of  the 
party  aggrieved,  has  power,  under  section  5,  chapter  855,  Laws  of  1869,  as 
amended  by  chapter  695  of  the  Laws  of  1871,  to  order  the  taxes  (when  paid)  to 
be  refunded. 

Where  the  assessors  have  power  to  act,  the  County  Court  cannot  interfere  with  the 
exercise  of  the  power,  but  where  they  have  no  power  to  act,  the  assessment  is 
illegal  and  improper,  and  the  County  Court  can  order  the  tax  paid  on  such 
illegal  assessment  to  be  refunded. 

Hudson  City  Savings  Institution  (5  Hun,  612)  distinguished. 

APPEAL  by  the  board  of  supervisors  of  Westchester  county  from 
an  order  in  the  above  entitled  matter,  made  by  the  County  Court  of 
Westchester  county,  on  the  9th  day  of  December,  1874:,  directing 
said  board  to  refund  the  sum  of  $788.46,  the  amount  of  tax  assessed 
and  levied  upon  the  property  of  said  corporation  in  the  town  of 
Westchester,  in  said  county,  in  the  year  1873,  and  collected  from 
said  corporation  by  the  receiver  of  taxes  of  the  town  of  Westches- 
ter, under  the  provisions  of  chapter  695  of  the  Laws  of  1871,  sec- 
tion 1. 

The  respondents  were  incorporated  by  the  provisions  of  chapter 
448  of  the  Laws  of  1863,  and  the  acts  amendatory  thereof,  namely, 
chapter  647  of  the  Laws  of  1866,  and  chapter  83,  Laws  of  1871,  and 
are  a  corporation  created  for  charitable  and  reformatory  purposes, 
and  for  such  purpose  have  owned,  possessed,  and  used  for  more  than 
five  years  certain  lands  and  buildings  in  the  town  and  county  ol 
Westchester,  which  were  used  for  such  charitable  and  reformatory 
purposes,  and  for  no  other  purpose  whatever.  By  section  3  of 
said  chapter  647  of  said  Laws  of  1866,  it  is  enacted :  "  The  real 
and  personal  estate  belonging  to  and  used  for  the  charitable  pur- 
pose of  said  association  shall  be  exempt  from  taxation." 


92         MATTER  OF  N.  Y.  CATHOLIC  PROTECTORY. 
SECOND  DEPARTMENT,  JUNE  TERM,  1876. 

The  fact  of  said  exemption  was  duly  communicated  to  the  asses- 
sors of  said  town  in  the  year  1873,  and  before  their  action  in  the 
premises,  but  notwithstanding  such  exemption  and  notice  thereof, 
the  assessors  set  down  on  their  assessment  roll,  as  lands  liable  to 
taxation  for  the  year  1873,  a  portion  of  the  said  lands  so  owned 
and  used  for  the  aforesaid  charitable  purposes,  and  the  same 
having  been  presented  to  the  board  of  supervisors,  the  said  body 
estimated  in  the  assessment  roll  the  tax  of  $788.46  to  be  borne  by 
said  portion  of  said  lands  and  paid  by  the  respondents,  and  said 
amount  was  levied  and  collected  of  the  property  of  the  respond- 
ents. The  petition  alleging  the  foregoing  facts  was  not  in  any 
respect  denied  by  the  board  of  supervisors. 

Odle  Close,  for  the  appellant.  I.  The  County  Court  has  no 
jurisdiction  to  review  the  action  of  assessors  in  making  an  assess- 
ment, and  it  could  not  therefore  adjudge  the  tax  in  question  to 
be  illegal  or  improper. 

The  act  under  which  authority  is  given  to  make  the  order  in 
question,  is  an  act  to  extend  the  powers  of  boards  of  supervisors, 
and  was  not  intended  to  clothe  the  County  Court  with  jurisdiction 
to  review  the  action  of  assessors  in  making  an  assessment. 

II.  The  determination  of  the  assessors  in  such  cases  is  judicial, 
and  of  course  not  reviewable  by  any  tribunal ;  certainly  not  by 
the  County  Court. 

III.  A  judicial  error  in  such  case,  if  any,  is  not  a  "  clerical  or 
other  error,"  within  the  meaning  of  the  statute  giving  the  County 
Court  jurisdiction  to  review,  or  make  any  order  for  the  refunding 
of  the  tax,  etc.     (Matter  of  the  Hudson  City  Savings  Institution, 
5  Hun,  612.) 

Robert  Cochran,  for  the  respondent.  I.  The  action  of  the  asses- 
sors of  the  town  of  Westchester,  in  deciding  that  any  portion  of 
the  property  of  the  respondents  was  liable  to  taxation,  was  illegal, 
and  the  making  of  the  assessment  exceeded  their  jurisdiction. 
(§  3,  chap.  647,  Laws  of  1866 ;  The  National  Bank  of  Chemung 
v.  The  City  of  Elmira,  53  N.  Y.,  49.) 

II.  This  is  one  of  those  cases  expressly  contemplated  by  the  law 
giving  county  courts  the  power  to  direct  the  remission  of  taxes 
(§  1,  chap.  695,  Laws  of  1871.) 


MATTER  OF  N.  Y.  CATHOLIC  PROTECTORY.         93 

SECOND  DEPARTMENT,  JUNE  TERM,  1876. 

DYKMAN,  J. : 

The  New  York  Catholic  Protectory  is  a  corporation  duly  incor- 
porated and  organized  for  charitable  and  reformatory  purposes  and 
objects. 

For  a  number  of  years  past  it  has  owned  and  been  in  the  posses- 
sion of  certain  lands  and  buildings  in  the  town  and  county  of  West- 
chester,  all  of  which  have  been  exclusively  used  for  the  purposes  of 
such  charity  and  reform,  which  purposes  specifically  are  the  cure, 
maintenance,  and  instruction  of  the  persons  whom,  by  their  charter, 
they  are  authorized  and  empowered  to  receive  and  have  under  their 
charge  and  control.  The  average  number  of  the  inmates  of  said 
buildings,  and  for  whom  the  lands  are  used,  is  over  1,500,  and  all 
of  whom  are  kept,  fed,  clothed,  and  maintained  in  the  buildings 
and  on  the  lands,  and  instructed  in  the  branches  of  an  English  edu- 
cation and  in  trades  and  agriculture.  The  inmates  are  principally 
orphan  children. 

It  is  provided,  by  the  third  section  of  the  law  wnich  constitutes 
the  corporation,  that  "  the  real  and  personal  estate  belonging  to 
and  used  for  the  charitable  purposes  of  said  association  shall  be 
exempt  from  taxation."  (Laws  of  1866,  chap.  647.) 

In  the  year  1873,  before  the  assessors  of  the  town  of  Westches- 
ter  had  made  their  assessment,  they  were  informed  that  all  the  lauds 
and  buildings  of  the  corporation  in  their  town  were  occupied  and 
used  exclusively  for  the  charitable  and  reformatory  objects  of  the 
corporation.  Notwithstanding  this  information,  the  assessors  of 
the  town  of  Westchester  set  down  on  their  assessment  roll  and 
assessed  a  portion  of  these  lands.  The  assessment  was  confirmed, 
the  tax  was  levied  by  the  board  of  supervisors  of  the  county  of 
Westchester,  and  collected  by  the  collector  of  the  town.  The 
amount  of  the  tax  so  levied  and  collected  was  $788.46. 

On  the  12th  day  of  November,  1874,  the  corporation  presented 
a  petition,  stating  substantially  the  foregoing  facts,  to  the  County 
Court  of  Westchester  county,  and  asked  that  an  order  might  be 
made  directing  the  board  of  supervisors  to  refund  the  amount  oi 
the  tax  so  levied  and  collected.  The  board  of  supervisors  appeared 
before  the  County  Court  and  answered  the  petition,  and  made 
answer  that  the  assessment  complained  of  was,  in  all  respects,  legal, 
and  that  in  the  making  thereof  no  clerical  or  other  error  was  com 


94         MATTER  OF  N.  Y.  CATHOLIC  PROTECTORY. 
SECOND  DEPARTMENT,  JUNE  TERM,  1876. 

mitted,  or  any  injustice  done  to  the  corporation,  and  asked  that 
the  prayer  of  the  petition  be  denied.  None  of  the  facts  stated 
in  the  petition  were  denied,  and,  of  course,  were  all  assumed 
to  be  true,  and  the  action  of  the  County  Court  was  based  upon 
them. 

The  County  Court  made  an  order  directing  the  board  of  super- 
visors of  Westchester  to  refund  to  the  Protectory  the  amount  of 
the  tax  so  levied  and  collected.     From  that  order  the  board  of  super 
visors  appealed  to  this  court,  and  the  whole  matter  is  now  before 
us  for  examination  and  determination. 

The  order  of  the  County  Court  was  made  under  section  5  of 
chapter  855  of  the  Laws  of  1869,  as  amended  by  chapter  695  of  the 
Laws  of  1871.  As  so  amended,  the  section  provides  that  the  board 
of  supervisors  of  any  county,  except  New  York  and  Kings,  may, 
by  a  two-third  vote,  legalize  certain  informal  acts  of  town  meetings, 
and  certain  irregular  acts  of  town  officers,  upon  recommendation 
of  the  County  Court ;  "  and,  also  upon  like  recommendation,  to  cor- 
rect a  clerical  or  other  error  in  any  assessments  or  returns." 

"And  upon  the  order  of  such  court  made,  on  application  of  the 
person  aggrieved  and  notice  thereof  to  such  board,  it  shall  refund 
to  such  person  the  amount  collected  from  him  of  any  tax  illegally 
or  improperly  assessed  or  levied." 

As  the  facts  stood  admitted  before  the  County  Court,  they  showed 
that  the  tax  had  been  illegally  and  improperly  assessed  and  levied, 
because  the  property  was  exempt  from  taxation  by  a  special  statute, 
and  the  attention  of  the  assessors  had  been  called  to  the  fact  and 
the  exemption  claimed.  The  assessors  had  no  jurisdiction  over  the 
property  at  all. 

But  it  is  claimed  that  as  only  such  lands  as  were  used  for  the 
charitable  purposes  of  the  corporation  are  exempt  from  taxation, 
it  became  the  duty  of  the  assessors  to  determine  the  question  as  to 
what  lands  were  so  used,  and  to  assess  land  which,  in  their  judg- 
ment, was  not  so  used  ;  that  such  determination  on  the  part  of  the 
assessors  was  a  judicial  act,  and  not  reviewable  by  the  County 
Court. 

The  answer  to  this  is  that  the  admitted  facts  before  the  County 
Court,  upon  which  this  order  was  made,  shows  that  if  the  assessors 
did  determine  that  the  lands  of  the  petitioners  were  not  all  used 


MATTER  OF  N.  Y.  CATHOLIC  PROTECTORY.         95 

SECOND  DEPARTMENT,  JUNE  TERM,  1876. 

for  the  purposes  of  the  charity,  they  determined  erroneously,  and 
it  is  elementary  law  that  where  the  right  of  assessors  to  act  depends 
upon  the  existence  of  some  fact  which  they  erroneously  determine 
to  exist,  their  acts  are  void.  (B<mk  of  Ghemung  v.  City  of 
Elmira,  53  N.  Y.,  53.) 

In  that  case  the  same  argument  was  used  that  was  used  in  this, 
and  in  relation  to  it  Chief  Justice  CHTTKOH  uses  the  following 
language  :  "  It  is  argued  that  they  have  jurisdiction  to  determine 
what  property  is  taxable  in  the  town.  This  is  a  mistake.  The 
legislature  determines  that  question  and  the  officers  have  no  power 
over  it.  The  statute  requires  the  assessors  to  '  ascertain  by  diligent 
inquiry,'  two  things  :  First,  the  taxable  inhabitants.  Second,  the 
taxable  property.  Where  they  decide  erroneously  as  to  a  taxable 
inhabitant,  it  is  conceded,  and  The  Mygatt  Case  (15  N.  Y.,  316) 
holds,  that  they  are  liable  as  trespassers  Why  not,  when  they  err 
as  to  taxable  property  ?  The  duty  is  precisely  the  same,  and  the 
power  conferred  in  the  same  language.  Assessors  must  have  juris- 
diction over  the  person  and  the  subject-matter. 

"  The  person  must  be  an  inhabitant  of  the  town  and  the  property 
must  be  taxable,  otherwise  the  assessment  is  illegal  and  void." 

In  this  case  it  appears  that  there  never  was  any  dispute  about 
the  facts  ;  the  assessors  were  informed  fully  of  the  exemption  and 
put  in  possession  of  all  the  facts,  and  there  was  nothing  in  them  to 
call  for  the  exercise  of  any  judgment  on  their  part  at  all.  They 
simply  determined  to  disregard  the  statute  and  make  the  assess- 
ment. With  this  large  number  of  human  beings  before  their  eyes, 
occupying  and  using  these  buildings  and  this  land  for  the  charita- 
ble purposes  contemplated  by  the  legislature  at  the  time  the 
exemption  was  declared,  these  town  assessors  yet  saw  tit  to  deter- 
mine that  this  real  estate  was  taxable. 

This  is  a  noble  charity  maintained  and  carried  on  under  the 
observation  of  these  very  assessors,  and  should  meet  the  encourage- 
ment and  approbation  of  all  men,  and  we  think  it  was  a  mistaken 
zeal  in  the  discharge  of  their  public  duties  that  induced  these  asses- 
sors to  assess  this  property  and  thus  cause  the  collection  of  the  tax. 
But  it  is  said  further  that  the  County  Court  had  no  power  to  make 
the  order,  and  no  jurisdiction  to  review  the  act  of  the  assessors  in 
making  an  assessment  and  that  the  law  under  which  the  authority 


96         MATTER  OF  N.  Y.  CATHOLIC  PROTECTORY. 
SECOND  DEPARTMENT,  JUNE  TEKM,  1876. 

was  given  was  not  intended  to  clothe  the  County  Court  with  such 
power. 

To  sustain  this  position  the  case  of  The  Hudson  Cit*,  Savings 
Institute  (5  Hun,  612)  is  cited  and  it  must  be  admitted  that  some 
tilings  which  are  said  in  that  opinion,  do  give  countenance  to  the 
position,  but  the  case  is  not  analogous  to  this.  That  was  a  case  of 
an  assessment  which  was  entirely  legal  and  proper,  and  at  the  close 
of  the  opinion,  and  in  what  was  undoubtedly  intended  to  give  the 
true  reason  for  the  decision,  Mr.  Justice  JAMES  uses  the  following 
language :  "  Therefore,  in  this  case,  whatever  may  be  the  fact 
about  exemption,  the  assessment  was  legal  and  proper,  and  the 
County  Court  was  without  authority  either  to  review  or,  upon  new 
facts,  to  retry  said  assessment  and  adjudge  it  illegal  or  improper." 

This  is  entirely  correct,  as  we  should  expect  it  to  be,  coming 
from  a  judge  of  so  much  ability  and  experience  as  the  eminent 
justice  who  prepared  the  opinion.  The  statute  in  question  does 
not  give  power  to  the  County  Court  to  adjudge  a  tax  illegal  or 
improper,  but  to  make  an  order  that  the  board  of  supervisors  shall 
refund  the  amount  collected  of  any  person  "  of  any  tax  illegally  or 
improperly  assessed." 

The  distinction  is  between  an  erroneous  and  illegal  assessment 
The  former  is  when  the  officers  have  power  to  act  and  err  in  the 
exercise  of  the  power.  The  latter  is  where  they  have  no  power  to 
act  at  all,  and  it  does  not  aid  them  to  decide  that  they  have. 
(Bank,  of  Chemung  v.  City  of  JZlmira,  53  N.  Y.,  58.) 

We  hold,  therefore,  that  as  the  tax  in  this  case  was  illegal  and 
improper  the  County  Court  had  the  power,  under  the  statute,  to 
make  the  order,  and  it  must  be  affirmed. 

Present  —  BABNARD,  P.  J.,  GILBERT  and  DTKMAN,  JJ. 
Order  affirmed,  with  costs  and  disbursements. 


MEMORANDA 


OASES    NOT    REPORTED    IN 


WILLIAM    A.    GUEST,    RESPONDENT,    v.     THE    CITY    OF 
BROOKLYN  AND  OTHERS,  APPELLANTS. 

Assessment  —  irregularity  in,  cured  by  legislative  act  — «•  Law  directing  that  property 
defectively  assessed  for  local  improvement  be  taxed  to  the  amount  of  the  assessment  — 
validity  of — Constitution,  art.  7,  §  13  —  requiring  tax  and  object  to  be  stated  — 
relates  solely  to  State  finances,  and  does  not  govern  assessments  for  local  improve- 
ments—  chap.  297  of  1861  —  chap.  383  of  1869  —  construction  of. 

APPEAL  from  a  judgment  entered  upon  the  report  of  a  referee, 
cancelling  an  assessment  on  the  plaintiff's  land,  and  a  sale  had  for 
the  non-payment  of  a  tax,  including  an  installment  of  such  assess- 
ment, and  enjoining  the  city  of  Brooklyn  from  enforcing  the  col- 
lection of  such  tax,  etc. 

The  assessors  of  the  city  of  Brooklyn  were  by  law  directed  to 
ascertain  the  actual  cost  of  the  Third  street  improvement  (so  called) 
in  said  city,  and  to  apportion  and  assess  the  same  among  and  upon 
the  lands  benefited  by  said  improvement,  situate  within  a  specified 
district  of  assessment,  according  to  the  provisions  of  chapter  297 
of  the  Laws  of  1861,  and  chapter  383  of  the  Laws  of  1869.  The 
latter  act  directed  that  one-nineteenth  part  of  such  cost,  with  inter- 
est, should  be  annually  collected  by  tax,  until  the  whole  should  be 
paid.  In  the  annual  tax  against  the  plaintiff  for  1871,  there  was 
included  the  sum  of  $267.11,  being  one-nineteenth  part  of  the  sum 
apportioned  as  the  plaintiff's  share  of  the  cost  of  said  improvement, 
with  interest.  The  referee  found  that  such  apportionment  was  null 
and  void,  but  upon  what  ground  did  not  distinctly  appear.  He 
also  found  that  one-half  of  the  plaintiff's  lot,  upon  which  the  tax 
aforesaid  is  a  charge  or  lien,  was  not  within  said  district  of  assess- 
ment, and  the  legal  effect  of  the  judgment  rendered  by  him  wag 
to  enable  the  plaintiff  to  pay  that  part  of  the  tax  against  him, 
HUN— VOL.  VIII.  18 


98  GUEST  v.  CITY  OF  BROOKLYN. 

SECOND  DEPARTMENT,  JUNE  TERM,  1876. 

which  would  remain  after  deducting  therefrom  said  sum  of  $267.11, 
and  upon  such  payment  being  made,  to  have  the  whole  tax  can- 
celed, and  the  plaintiff's  lot  relieved  from  the  incumbrance  thereof, 
and  of  the  proceedings  had  for  the  sale  of  said  lot  for  the  non-pay- 
ment of  the  tax. 

The  court  at  General  Term  say :  "  We  are  unable  to  concur  iu 
the  conclusions  of  the  referee.  The  act  of  1869,  before  cited,  con 
ferred  upon  the  assessors  jurisdiction,  and  made  it  their  duty  to 
make  the  apportionment  referred  to,  and  to  add  one-nineteenth  ut 
the  plaintiff's  share  of  the  amount  thereof  to  the  annual  tax  against 
him  in  each  year.  That  act  we  think  is  clearly  valid,  whether  the 
proceedings  in  respect  to  the  Third  street  improvement,  which  it 
ratifies,  were  void  for  irregularity  or  illegality,  or  not.  It  is  not 
necessary  to  discuss  the  objections  urged  against  the  validity  or 
those  proceedings  prior  to  the  passage  of  said  act  of  1869,  for 
it  was  competent  for  the  legislature  to  direct,  that  the  actual  costs 
of  that  improvement,  however  incurred,  should  be  ascertained,  and 
to  impose  a  tax  directly  for  the  amount  of  such  cost  upon  the 
property  which  they  deemed  benefited  by  the  improvement.  That 
is  the  legal  effect  of  said  act  of  1869.  The  reference  which  it  con- 
tains to  the  act  of  1861,  for  the  purpose  of  prescribing  the  manner 
of  imposing  and  collecting  the  tax,  was  sufficient,  whether  the  lat- 
ter act  be  deemed  valid  as  a  separate  enactment  or  not.  We  think, 
however,  it  was  a  valid  act.  The  legal  effect  of  such  reference  to 
it  was  to  incorporate  the  matter  referred  to  into  the  act  of  1869, 
and  as  there  was  then  no  constitutional  prohibition  against  that 
method  of  legislation,  it  must  be  held  to  be  a  legal  mode  of 
expressing  the  legislative  intent,  and  effect  must  be  given  to  it 
accordingly.  The  tax,  and  the  object  to  which  it  was  to  be  applied, 
we  think  were  sufficiently  stated.  But  if  not,  we  are  of  opinion 
that  the  tax  is  not  affected  by  article  7  of  the  Constitution. 
That  article  relates  solely  to  the  State  finances,  and  does  not 
govern  assessments  for  local  improvements.  {People  v.  Suprs.  of 
Chenango,  4  Seld.,  317;  Darlington  v.  The  Mayor,  31  X.  Y., 
186.)  The  case  of  Banlon  v.  Supervisors,  contra  (57  Barb.,  383), 
is  in  conflict  not  only  with  the  cases  cited,  but  with  a  decision  on 
this  point  made  at  a  General  Term  of  this  court.  (6  Lans.,  97.) 
Nor  is  there  any  force  in  the  objection  that  the  legislature  did  not 


GUEST  v.  CITY  OF  BROOKLYN.  99 


SECOND  DEPARTMENT,  JUNE  TERM,  1876. 


designate  the  means  for  ascertaining  the  cost  of  the  improvement, 
or  that  the  tax  therefor  was  imposed  through  the  medium  of  the 
board  of  assessors.  The  legal  presumption  is,  that  such  cost  was 
ascertained  in  a  proper  way,  and  the  imposition  of  the  tax  was  done 
in  the  mode  generally  adopted.  That  the  legislature  has  power  to 
amend  defective  proceedings  of  public  officers,  to  render  valid  acts 
within  the  scope  of  the  legislative  power,  but  which  were  done 
under  statutes  that  infringed  one  or  more  provisions  of  the  Consti- 
tution, and  to  impose  taxes  for  the  expense  of  public  works  incurred 
without  antecedent  authority,  has  been  in  effect  repeatedly  adjudged. 
(People  ex  Tel.  Alb.  and  Sus.  It.  R.  Go.  v.  Mitchell,  35  N.  Y.,  551 : 
Re  Van  Antwerp,  56  id.,  261 ;  People  v.  Williams,  3  N.  Y.  S.  C. 
[T.  &  C.],  339 ;  Rogers  v.  Smith,  5  Hun,  475  ;  Dean  v.  Borch- 
senius,  30  Wis.,  236 ;  Brewster  v.  City  of  Syracuse,  19  N.  Y.,  116  ; 
Guilford  v.  Supervisors  of  Chenango,  3  Kern.,  143  ;  Litchfteld  v. 
Vernon,  41  N".  Y.,  123 ;  Sorchan  v.  City  of  Brooklyn,  6  N.  Y. 
Sup.  [T.  &  C.],316.)  Such  power  was  exercised  in  the  case  before 
us,  and  it  cured  the  numerous  defects,  assuming  them  to  exist, 
which  have  been  urged  by  the  plaintiff  to  invalidate  the  tax.  The 
meaning  of  the  act  of  1869  is  plain  enough,  although  the  language 
used  to  convey  the  same  is  obscure.  The  legislature  directed  the 
cost  of  the  improvement  to  be  ascertained  and  apportioned,  and  the 
amount  apportioned  and  remaining  unpaid  to  be  levied  and  assessed 
upon  the  lands  chargeable  therewith,  as  then  provided  by  law,  and 
in  such  manner  that  one-nineteenth  part  thereof  (instead  of  one- 
twentieth,  as  had  been  previously  provided),  with  interest,  should 
be  collected  in  each  year.  The  lands  to  be  assessed  were  defined  by 
the  act  of  1861,  and  such  district  of  assessment  was  adopted  by  the 
act  of  1869.  These  remarks,  if  correct,  show  that  there  was  no 
lack  of  authority  for  the  levying  of  the  tax,  and  that  the  assessors 
had  jurisdiction  in  the  premises." 

William  C.  De  Witt,  for  the  appellants.     John  J.  Townsend,  for 
the  respondent. 

Opinion  by  GILBERT,  J. ;  BARNARD,  P.  J.,  concurred. 
Present  —  BARNARD,  P.  J.,  GILBERT  and  DYKMAN,  JJ. 

Judgment  reversed  and  new  trial  granted  at  Special  Term,  cost* 
to  abide  event. 


100  MOULTON  v.  BEECHER. 

SECOND  DEPARTMENT,  JUNE  TERM,  1876. 


FRANCIS   D.   MOULTON,    APPELLANT,   v.    HENRY  WARD 
BEECHER,  RESPONDENT. 

Maiietout  prosecution  —  Entry  of  nolle  prosequi  with  defendant's  assent,  a  sufficient 
end  of  the  prosecution  to  support  an  action. 

THE  complaint  alleged,  in  substance,  that  the  defendant  falsely 
and  maliciously,  and  without  any  probable  cause,  procured  the  indict- 
ment of  the  plaintiff  for  alleged  criminal  libels  on  the  defendant. 

That  defendant,  falsely  and  maliciously  and  without  any  reason 
able  or  probable  cause,  procured  a  warrant  for  the  arrest  of  plain- 
tiff, upon  the  aforesaid  indictment,  to  answer  the  charges  therein 
made  against  him  as  aforesaid,  and  afterward  caused  plaintiff  to  be 
taken  in  custody,  and  carried  before  a  judge  of  the  City  Court  of 
Brooklyn,  and  to  be  then  and  there  compelled  to  give  a  bond  to 
appear  for  trial  therein. 

That  defendant,  falsely  and  maliciously  and  without  any  reason- 
able or  probable  cause,  procured  plaintiff  to  be  arraigned  before 
said  City  Court,  and  compelled  him  to  plead  to  said  indictment. 

That  plaintiff  pleaded  not  guilty  and  was  then,  and  ever  since 
has  been,  ready  and  anxious  to  stand  trial  on  said  indictment ;  but 
the  district  attorney  in  and  for  the  county  of  Kings,  after  consult- 
ing with  defendant  and  in  compliance  with  his  request,  but  against 
the  will  and  protest  of  plaintiff,  did,  on  or  about  the  22d  day  of 
October,  1875,  move  the  said  City  Court  of  Brooklyn,  that  a  nolle 
prosequi  be  entered  as  to  said  indictment,  and  the  prosecution 
thereof  against  the  plaintiff;  and  the  said  City  Court  did,  then  and 
there,  grant  said  motion,  and  it  was  thereupon  adjudged  and  ordered 
by  the  said  court  that  a  nolle  prosequi  should  be  allowed  and  entered 
as  to  said  indictment  and  prosecution  against  plaintiff,  and  the  same 
was  allowed  and  entered  of  record  in  said  court. 

That  the  said  indictment,  complaint  and  prosecution,  and  each 
of  them,  is  wholly  ended  and  determined  in  favor  of  plaintiff,  in 
the  manner  set  forth  in  the  last  preceding  paragraph. 

That,  by  reason  of  the  premises,  plaintiff  has  been  injured  in 
his  good  name  and  wounded  in  his  feelings,  and  involved  in  expense 
and  subjected  to  insult  and  oppression,  to  his  damage  $50,000. 


MOULTON  v.  BEECHEK.  101 

SECOND  DEPARTMENT,  JUNE  TERM,  1876. 

Wherefore  plaintiff  demands  judgment  for  $50,000  and  costs. 

The  defendant  demurred  to  the  complaint,  on  the  ground  that, 
as  it  appears  upon  the  face  thereof,  the  complaint  did  not  state  facts 
sufficient  to  constitute  a  cause  of  action. 

The  demurrer  was  sustained  at  the  Special  Term,  on  the  ground 
that  there  was  no  sufficient  averment  that  the  action  was  terminated 
in  plaintiff's  favor,  and  from  the  order  sustaining  it  the  plaintiff 
appealed. 

The  court  at  General  Term  say  :  "  The  prosecution  com- 
plained of  in  this  action,  as  falsely  and  maliciously  made,  was 
criminal.  The  plaintiff  avers  that  the  defendant  falsely  accused 
him  of  perjury,  and  that  he  made  the  accusation  maliciously. 
The  criminal  charge  resulted  in  an  indictment,  and  the  com- 
plaint avers,  that  the  prosecution  thereof  has  been  terminated 
in  plaintiff's  favor,  by  the  entry  of  a  nolle  prosequi  on  motion 
of  the  district  attorney  of  the  county  where  the  indictment  was 
pending  and  triable,  and  with  leave  of  the  court.  That  the  motion 
was  made  '  after  consulting  with  defendant,  and  in  compliance  with 
his  request.'  *  *  *  This  was  a  sufficient  averment  of  the  ter- 
mination of  the  criminal  charge  in  favor  of  plaintiff.  *  *  * 

The  judgment  at  Special  Term  should  be  reversed,  and  the 
demurrer  overruled,  with  costs." 

Roger  A.  Pryor,  for  the  appellant.  Shearman  &  Sterling,  for 
the  respondent. 

Opinion  by  BARNARD,  P.  J.;  GILBERT,  J.,  concurred.  DYKMAN, 
J.,  not  sitting. 

Order  sustaining  demurrer  reversed,  with  costs,  and  demurrer 
overruled,  with  costs,  with  leave  to  defendant  to  answer  in  twenty 
days. 


DETERMINED  Of  THE 


FOURTH  DEPARTMENT 


AT 


GENERAL   TERM, 
,  1876. 


MARY  PENDERGAST  HOOK,  APPELLANT,  v.  DANIEL 
PRATT,  PATRICK  LYNCH  AND  WILLIAM  T.  HAMIL- 
TON, EXECUTORS  OF,  ETC.,  OF  JAMES  P.  HASKIN,  DECEASED, 

AND   OTHERS,    RESPONDENTS. 

Portions  of  wfll  revoked  by  codicil  fraudulently  procured,  and  destroyed  —  Supreme 
Court  has  power  to  establish  and  restore  the  portion  destroyed  —  Surrogate's  Court, 
no  such  power. 

A.  complaint  alleged  the  fraudulent  destruction,  during  the  life-time  of  the  testator, 
of  certain  clauses  in  his  will,  and  prayed,  among  other  things,  that  such  clauses 
be  restored  and  established  as  part  of  said  will,  setting  forth  such  clauses  and 
the  beneficial  interest  thereunder  of  the  plaintiff,  who  was  neither  heir  at  law 
or  next  of  kin  to  the  testator. 

Held,  not  demurrable  011  the  ground  that  it  did  not  state  facts  sufficient  to  consti- 
tute a  cause  of  action. 

That  the  Surrogate's  Court  had  no  power  to  grant  the  relief;  it  could  only  grant 
letters  of  probate  on  a  perfected  will,  but  had  no  jurisdiction  to  establish  a  lost 
or  destroyed  will. 

That,  although  the  statute  (title  1,  chap.  6,  3  R.  S.)  refers  to  a  "  lost  or  destroyed 
will,"  it  should  have  a  liberal  construction  in  furtherance  of  justice,  and  for 
the  prevention  of  fraud;  and  the  fraudulent  destruction  of  a  single  item  or 
clause,  or  distinct  portion  or  provision  of  a  will,  must  be  considered  as  the 
destruction  of  a  will  by  design,  under  section  63,  or  fraudulent  under  section 
67,  if  such  destruction  affects  the  disposition  of  the  property  &*  the  testator  ir 
any  essential  particular. 


HOOK  v.  PRATT.  103 


FOURTH  DEPARTMENT,  JUNE  TERM,  1876. 


That  the  court,  under  the  provisions  of  the  statute  aforesaid,  have  ample  power, 
upon  due  proof  of  the  allegations  of  the  plaintiff's  complaint,  to  restore  the 
destroyed  or  suppressed  portions  of  the  will,  and  establish  the  same  as  it  stood 
before  the  making  of  the  codicil  alleged  to  have  been  fraudulently  procured; 
and  the  probate  of  such  codicil  allowed  or  made  by  the  surrogate  did  not  pre- 
clude such  investigation  and  decision,  or  bind  or  affect  the  plaintiff  upon  such 
question  in  the  prosecution  of  her  action. 

APPEAL  from  an  order  made  at  Special  Term,  sustaining  a 
demurrer  to  a  complaint,  on  the  ground  that  it  did  not  state  facts 
sufficient  to  constitute  a  cause  of  action,  and  from  the  judgment 
entered  thereon  in  favor  of  the  defendants. 

James  P.  Haskin,  of  the  city  of  Syracuse,  died  on  or  about  Janu- 
ary 30,  1873,  possessed  of  a  large  real  and  personal  estate,  leaving 
a  will  dated  January  16,  1871,  and  a  codicil  thereto  dated  April  5, 
1 872,  which  latter  was  in  these  words :  "  I,  James  P.  Haskin,  of 
the  city  of  Syracuse,  N.  Y.,  do  make  this  codicil  to  my  last  will 
as  follows,  viz. :  Desiring  to  cancel  and  revoke  the  bequests  made 
in  the  eleventh  (11),  twelfth  (12)  and  thirteenth  (13)  items  of  my 
last  will  and  testament,  which  was  made,  executed  and  published 
the  16th  day  of  January,  1871,  I  have  detached  said  items  from 
said  will  and  destroyed  them. 

In  witness  whereof  I  have  hereunto  set  my  hand  and  seal  this 
5th  day  of  April,  1872. 

[L.  g.]  J.  P.  HASKIN." 

The  said  will  (without  said  llth,  12th  and  13th  clauses)  and  the 
codicil  were  admitted  to  probate  by  the  surrogate  of  Onondaga 
county,  on  the  24th  day  of  February,  1873,  and  letters  testamentary 
were  duly  issued  to  the  defendants  Daniel  Pratt,  Patrick  Lynch 
and  William  T.  Hamilton,  named  as  executors  in  said  will, 
who  thereupon  duly  qualified  and  entered  upon  the  discharge  of 
their  duties  as  such  executors,  and  continued  to  act  as  such 
executors  at  the  time  of  the  commencement  of  this  action. 

The  plaintiff  alleged  in  her  complaint  that  she  was  neithei  an 
heir  at  law  or  next  of  kin  to  the  said  James  P.  Haskin,  deceased, 
and  that  said  previous  probate  of  said  will  and  pretended  codicil 
was  had  without  any  notice  to,  or  citation  of  the  plaintiff,  who  wag 
a  legatee  under  the  will  of  the  said  James  P.  Haskin,  deceased 


104  HOOK  v.  PRATT. 

FOURTH  DEPARTMENT,  JUNE  TERM,  1876. 

prior  to  the  said  pretended  codicil,  which  purports  to  expunge 
clauses  eleventh,  twelfth  arid  thirteenth  of  said  will,  as  it  stood  at 
the  date  of  said  pretended  codicil,  and  that  the  plaintiff  had  no 
knowledge  of  said  probate  nor  of  the  issuing  of  said  letters  testa- 
mentary, until  long  after  the  said  probate  had  been  had,  and  the  said 
letters  testamentary  had  been  issued  by  the  said  surrogate  as  afore- 
said. 

She  further  alleged,  upon  information  and  belief,  that  by  the 
clauses  of  said  will,  which  purport  to  have  been  expunged  by  the 
said  pretended  codicil,  the  following  legacies  were  given  and 
bequeathed  by  the  said  testator  to  the  following  persons : 

By  the  said  eleventh  clause  the  sum  of  $100,000  was  given  and 
bequeathed  to  Charles  H.,  son  of  this  plaintiff,  whose  name  was  at 
the  time  of  the  said  bequest  Mary  Pendergast,  upon  certain  condi- 
tions, and  if  the  conditions  were  not  complied  with,  the  said  Charles 
H.,  son  of  th«  plaintiff,  and  James  P.  Haskin,  the  testator,  was  to 
receive  under  and  by  said  will  the  sum  of  $50,000  at  his  majority. 
Also,  if  the  plaintiff,  the  mother,  should  resign  control  of  her  said 
son  Charles  H.,  as  provided  in  the  will,  she  was  to  receive,  by  the 
said  eleventh  clause  of  said  will,  the  sum  of  $1,200  per  year  during 
his  minority,  and  also  the  sum  of  $20,000  at  his  majority;  and 
the  plaintiff  averred  that  she  ever  has  been  and  still  was  ready 
and  willing  to  resign  the  control  of  her  said  son  Charles  H.,  etc. 

By  the  said  twelfth  clause  the  sum  of  $800  per  year  during  he: 
life  was  given  and  bequeathed  to  Mrs.  Rust,  the  sister  of  the 
plaintiff. 

By  the  said  thirteenth  clause  the  sum  of  $300  per  year  during 
her  life  was  given  and  bequeathed  to  Mrs.  Pendergast,  the  mother 
of  the  plaintiff,  and  grandmother  of  the  said  Charles  H.,  son  of  the 
plaintiff  and  the  testator,  James  P.  Haskin,  deceased. 

That  said  pretended  codicil  was  not  made,  signed,  published  or 
declared  on  the  day  it  bears  date,  but  at  a  much  later  period,  to 
wit :  On  or  about  the  first  day  of  September,  1 872 ;  and  was  pro- 
cured to  be  dated  back  by  the  fraud,  constraint  and  undue  influence, 
practiced  upon  the  said  testator,  by  William  T.  Hamilton,  Frances 
Maria  Hamilton  and  Eliza  Cossitt  Lawrence,  and  each  of  them,  and 
other  persons  acting  in  their  interest  and  on  their  behalf,  they  and 
each  of  them  well  knowing  that  at  the  time  the  said  testator, 


HOOK  v.  PRATT.  105 

FOURTH  DEPARTMENT,  JUNE  TERM,  1878. 

James  P.  Haskin,  was  totally  unsound  in  mind  and  incapable  ol 
making  a  will  or  codicil. 

The  plaintiff  further  alleged  that  the  said  James  P.  Haskin, 
deceased,  became  acquainted  with  the  plaintiff  when  she  was  a  girl 
only  eleven  years  of  age,  and  from  that  time  forward  met  her  often ; 
and  before  this  plaintiff  became  sixteen  years  old  the  said  James 
P.  Haskin,  deceased,  had,  by  his  enticements  and  allurements,  com- 
passed her  virtue ;  and  from  that  hour  down  to  the  time  of  the  mar- 
riage of  this  plaintiff,  this  plaintiff  had  been  unto  the  said  James  P. 
Haskin,  now  deceased,  all  that  a  wife  could  be,  or  be  expected  to  be, 
unto  a  husband;  and  that  the  plaintiff,  during  this  intimacy,  had  borne 
unto  him  three  living  children,  all  of  whom  were  dead  at  the  time 
of,  and  for  a  long  time  prior  to,  the  decease  of  the  said  James  P. 
Haskiu,  except  the  said  Charles  H.,  who  was  and  still  is  living 
with  this  plaintiff;  and  since  the  marriage  of  this  plaintiff,  the  said 
James  P.  Haskin,  while  living  and  able  to  visit  them  at  their  home 
in  Kochester,  did  not  cease  his  kind  attention,  etc.  That  subse 
quent  to  the  plaintiff's  said  marriage,  the  said  James  P.  Haskin, 
with  full  knowledge  of  the  same,  and  to  do  justice  to  the  plaintiff 
and  her  said  son  Charles  H.,  as  well  as  to  the  mother  and  sister  of 
this  plaintiff,  to  whom  he  was  under  many  obligations,  made  his 
last  will  and  testament ;  after  serious  opposition  from  said  William 
T.  Hamilton,  Frances  Maria  Hamilton  and  Eliza  Cossitt  Lawrence, 
and  in  the  said  eleventh,  twelfth  and  thirteenth  clauses  of  said  will, 
the  said  testator  provided  generously  for  the  plaintiff'  and  her  said 
son  Charles  H.,  and  also  for  this  plaintiff's  mother  and  sister,  in 
spite  of  the  aforesaid  opposition.  That  during  the  interval  between 
the  date  of  said  will  and  the  date  of  the  said  pretended  codicil, 
while  the  mind  and  body  of  the  said  James  P.  Haskin,  deceased, 
were  gradually  growing  weak  and  feeble  from  disease,  suffering 
and  trouble,  the  said  testator  was  almost  continuously  besought, 
threatened  and  coerced  by  the  said  William  T.  Hamilton,  Frances 
Maria  Hamilton  and  Eliza  Oossitt  Lawrence,  and  each  of  them, 
who  well  knew  the  relations  that  existed  between  this  plaintiff  ana 
the  said  testator,  that  he  should  change  his  said  will,  and  cut  off  the 
bequests  to  this  plaintiff  and  her  family;  but  that  the  said  testator 
resisted  such  threats  and  importunities  until  finally,  when  he  could 
bear  up  no  longer,  his  will  was  overpowered,  and  he  yielded  his 
HUN— VOL.  VIII.  14 


10(5  HOOK  v.  PRATT. 


FOURTH  DEPARTMENT,  JUNE  TERM,  1876. 


own  to  the  wishes  of  said  William  T.  Hamilton,  Frances  Maria 
Hamilton  and  Eliza  Cossitt  Lawrence.  That  the  said  eleventh, 
twelfth  and  thirteenth  clauses  of  said  will,  which,  by  the  said  pre- 
tended codicil,  purport  to  have  been  expunged,  detached  a»id 
destroyed,  by  the  said  testator,  James  P.  Haskin,  deceased,  wi-re 
not  in  fact  so  detached  and  destroyed,  by  him  the  said  testator,  1  ut 
as  the  plaintiff  was  informed  and  believes  true,  were  actually  in 
existence  subsequent  to  the  death  of  the  said  testator,  whose  death 
was  occasioned  by  his  own  insane  suicidal  act,  and  were  in  the  pos- 
session of  the  said  "William  T.  Hamilton,  Daniel  Pratt  and  Patrick 
Lynch,  one  or  all  of  them,  and  that  the  said  clauses  of  said  will  are 
still  in  existence  in  their  possession  or  under  their  control ;  and  she 
demanded  judgment  and  the  decree  of  this  court,  that  the  said  pre- 
tended codicil  to  the  will  of  the  said  James  P.  Haskin,  deceased, 
be  declared  null  and  void,  and  the  probate  thereof  be  set  aside,  and 
the  letters  testamentary  issued  thereon  be  revoked  and  canceled, 
and  that  the  said  eleventh,  twelfth  and  thirteenth  clauses  of  said 
will  be  restored  and  established  as  a  part  of  the  said  last  will  and 
testament  of  the  said  James  P.  Haskin,  deceased,  and  that  the  said 
pretended  codicil  be  decreed  never  to  have  been  legally  or  suffi- 
ciently acknowledged ;  that  the  plaintiff  be  permitted  to  apply  to 
the  surrogate  of  the  county  of  Onondaga  to  prove  and  establish  the 
said  last  will  and  testament  of  the  said  James  P.  Haskin,  deceased, 
as  it  stood  on  the  said  16th  day  of  January,  1871,  the  day  it  bears 
date,  without  the  said  pretended  codicil,  and  with  the  said  three 
clauses  purporting  to  have  been  destroyed,  restored  as  a  part  or 
parts  of  said  last  will  and  testament,  and  for  other  and  further  relief. 

fuller  &  Vann,  for  the  appellant.  The  statute  directly  confers 
jurisdiction  upon  a  court  of  equity  to  grant  the  relief  asked  for  in 
this  bill  —  upon  the  production,  of  course,  of  the  necessary  proof. 
Section  63  b  of  the  statute  reads  :  "  Whenever  any  will  of  real  or 
personal  estate  shall  be  lost  or  destroyed  by  accident  or  design,  the 
Court  of  Chancery  shall  have  the  same  power  to  take  proof  of  the 
execution  and  validity  of  such  will,  and  to  establish  the  same,  as  in 
the  case  of  lost  deeds."  Section  64  J  reads  :  "  Upon  such  will  being 
established  by  the  decree  of  a  competent  court,  such  decree  shall 
be  recorded  by  the  surrogate,  before  whom  the  will  might  have  beer 


HOOK  v.  PRATT.  107 


FOURTH  DEPARTMENT,  JUNE  TERM,  1876. 


proved,  if  not  lost  or  destroyed,  and  letters  testamentary,  or  of  admin- 
istration with  the  will  annexed,  shall  be  issued  thereon  by  him,  in 
the  same  manner  as  upon  wills  duly  proved  before  him."  (See, 
also,  sections  65  b,  66  b,  67  b,  and  68  b  of  the  same  statute.)  Chap- 
ter 238  of  the  Laws  of  1853  (4  R.  S.  [Edm.  ed.],  503),  provides : 
"  That  the  validity  of  any  actual  or  alleged  devise  or  will  of  reai 
estate  may  be  determined  by  the  Supreme  Court  in  a  proper  action 
for  that  purpose,"  etc.  Thus,  whatever  may  have  been  the  remedy 
in  such  cases  before  the  statute,  this  court  now  has  jurisdiction  : 
1st.  To  declare  that  codicil  void.  2d.  To  establish  the  three  clauses 
purporting  to  have  been  detached  and  destroyed.  This  being  done, 
the  surrogate  must  record  the  decree,  and  issue  letters  as  the  statute 
directs.  This  is  the  relief  prayed  for  in  the  complaint. 

D.  Pratt,  for  the  respondents.  I.  A  court  of  equity  has  no  juris- 
diction to  set  aside  a  will  of  personal  property,  not  even  for  fraud. 
The  surrogate  has  exclusive  jurisdiction  in  such  cases.  (Fisher  v. 
Clark,  1  Paige,  171,  176  ;  Colton  v.  JKoss,  2  id.,  396  ;  Kerish  v. 
firansby,  7  Brown  [P.  C.],  437 ;  Hoff.  Oh.  R.,  10 ;  1  Yes.  Sen., 
284,  287.) 

II.  In  this  case  the  will  has  been  admitted  to  probate  by  the 
decree  of  a  court  not  only  of  competent  but  of  exclusive  jurisdic- 
tion to  hear  and  determine  the  same.     Until  that  decree  be  reversed 
upon  appeal,  it  is  conclusive  upon  all  parties  interested.     (Fisher  v. 
Clark,  supra /   Colton  v.  Moss,  supra;    Borgardus  v.   Clark,  4 
Paige,  624;    Vanderpool  v.  Van  Valkenburgh,  6  N.  Y.,  190;  3 
Barb.  Ch.,  481 ;  Hoff  Ch.  R.,  10 ;  1  Story,  547 ;  12  Mass.,  525 ; 
1  Pick.,  535  ;  Allen  v.  Dundee,  3  Term  R.,  125  ;  1  Yes.  Sen.,  284, 
287 ;  7  Bro.  P.  C.,  437.) 

III.  It  is  not  material  that  the  plaintiff  was  not  made  a  party  to 
the  proceedings  before  the  surrogate.     1.  It  is  in  the  nature  of  pro- 
ceedings in  rem,  to  which  any  person  having  an  interest  may  make 
himself  a  party  by  applying  to  the  proper  tribunal  before  which 
the  proceedings  are  had,  and  will  therefore  be  bound  by  the  decree 
of  such  tribunal,  although  not  in  fact  a  party.     (Borgardus  v 
Chirk,  supra  ;  Vanderpool  v.  Van  Valkenburgh,  supra  ;  Hoff  Ch., 
10 :  Scott  v.  Sherman,  2  Wm.  Black.,  977 ;  Hart  v.  McNamara, 
4  Price,  154  note.)     2.  A  legatee  named  in  the  will  has  a  right  to 


108  HOOK  y.  PRATT. 


FOURTH  DEPARTMENT,  JUNK  TERM,  1876. 


intervene  for  her  interest  on  the  probate  of  a  codicil  which  revokes 
the  legacy.  ( Walsh  v.  Ryan,  1  Brad.,  433 ;  Terhune  \.  Brook- 
faldy  1  Red.,  220.)  (<z.)  One  claiming  as  legatee  under  an  alleged 
lost  or  destroyed  will  of  a  prior  date  to  that  propounded  before  the 
surrogate,  may  be  admitted  to  contest  the  probate,  upon  his  com- 
mencing an .  action  in  the  Supreme  Court  to  establish  there  the 
destroyed  will. 

IV.  This  cannot  be  considered  an  action  to  establish  a  lost  or 
destroyed  will,  as  the  complaint  sets  out  a  copy  of  the  will.  It 
also  alleges  that  the  portion  expunged  is  still  in  the  possession  of 
the  executors. 

E.  DARWIN  SMITH,  J. : 

The  demurrer  was  sustained  at  Special  Term  upon  the  ground 
that  the  complaint  does  not  contain  facts  sufficient  to  entitle  the 
plaintiff  to  the  relief  prayed  for  in  the  complaint. 

In  this  I  think  the  learned  judge  was  mistaken.  The  complaint 
sets  up,  and  makes  out,  a  case  of  fraudulent  destruction  of  three 
clauses  of  the  will  of  the  said  James  P.  Haskins,  deceased,  and 
prays,  among  other  things,  that  such  clauses,  marked  the  eleventh, 
twelfth  and  thirteenth,  be  restored  and  established  as  part  of  said 
will  and  testament.  This  court  has  full  power  and  authority,  I 
think,  under  sections  42,  63  and  67,  title  1,  chapter  6,  part  2  of  the 
Revised  Statutes,  to  entertain  such  action,  and  give  such  relief,  as 
held  in  Timon  v.  Claffy  (45  Barb.,  438),  and  Voorhis  v.  Voorhis 
(50  id.,  119),  which  latter  case  was  affirmed  in  the  Court  of  Appeals, 
in  39  New  York,  463.  (  Vide,  also,  Schultz  v.  Schults,  35  id.,  656.) 

The  Surrogate's  Court  had  no  power  to  grant  such  relief.  It  can 
only  grant  letters  of  probate  upon  a  perfected  will,  propounded  for 
that  purpose.  It  can  take  proof  respecting  its  due  execution,  and 
has  exclusive  jurisdiction  of  that  subject  in  respect  to  all  persons 
named  in  the  will  or  interested  therein  as  heirs,  legatees  or  next  of 
kin.  But  it  has  no  jurisdiction  to  establish  a  lost  or  destroyed  will. 
The  plaintiff  in  this  action  stood  in  no  such  position  or  relation  to 
the  testator  as  to  entitle  her  to  be  cited  to  attend  the  probate  of 
the  said  will,  and  was  not,  in  fact,  cited.  Section  63  of  the  statute 
above  referred  to,  declares  that  "  whenever  a  will  of  real  or  per- 
sonal estate  be  lost  or  destroyed,  by  accident  or  design,  the  Court 


HOOK  v.  PRATT.  109 

FOURTH  DEPARTMENT,  JUNE  TERM,  1876. 

of  Chancery  shall  have  power  to  take  proof  of  the  execution  and 
validity  of  such  will,  and  to  establish  the  same  as  in  the  case  of  a 
lost  deed  ; "  and  section  61  provides,  that  "  upon  such  will  being 
established  by  the  decision  of  a  competent  court,  it  shall  be 
recorded  by  the  surrogate  before  whom  it  might  have  been  proved 
if  not  lost  or  destroyed,"  and  letters  testamentary,  with  the  will 
annexed,  shall  be  issued  thereon  by  him  in  the  same  manner  as 
upon  wills  duly  proved  before  him.  Section  67  provides,  that  "  no 
such  will  shall  be  proved  as  a  lost  or  destroyed  will,  unless  the  same 
shall  bo  shown  to  have  been  in  existence  at  the  time  of  the  death 
of  the  testator,  or  be  shown  to  have  been  fraudulently  destroyed 
in  the  lifetime  of  the  testator."  This  is  the  allegation  in  the 
plaintiff's  complaint  in  respect  to  the  three  items  or  clauses  of  the 
will  stricken  out  of  the  same.  This  statute  should  have  a  libera. 
construction  in  furtherance  of  justice  and  for  the  prevention  of 
fraud.  The  destruction  of  a  single  item  or  clause,  or  distinct  por- 
tion or  provision  of  a  will  fraudulently,  must  be  considered  as  the 
destruction  of  a  will  by  design,  under  section  63,  or  fraudulent 
under  section  67,  if  such  destruction  affects  the  disposition  of  the 
property  of  the  testator  in  any  essential  particular. 

I  have  no  doubt  that  this  court,  under  the  provisions  of  the 
statute  aforesaid,  has  ample  power,  upon  due  proof  of  the  allega- 
tions of  the  plaintiff's  complaint,  to  restore  the  destroyed  or  sup- 
pressed portions  of  said  will,  and  establish  the  same  as  it  stood 
before  the  making  of  the  codicil,  dated  and  purporting  to  be  exe- 
cuted on  the  7th  of  April,  1872,  and  that  the  probate  of  said 
codicil  already  allowed  as  made  by  the  surrogate  does  not  preclude 
such  investigation  and  decision,  or  bind  or  affect  the  plaintiff  upon 
such  question  in  the  prosecution  of  this  action. 

The  order  sustaining  the  demurrer  in  said  complaint  should  be 
reversed  and  the  said  demurrer  should  be  overruled,  with  leave  to 
the  defendants  to  answer  upon  the  usual  terms. 

Present  —  MULLIN,  P.  J.,  SMITH  and  TALOOTT,  J J. 

Order  sustaining  demurrer  reversed  and  demurrer  overruled, 
and  lea^e  to  answer  granted  upon  the  usual  terma 


110  DECKER  v.  GAYLORD. 

FOURTH  DEPARTMENT,  JUNE  TERM,  1876. 


ARETHUSA    DECKER,    RESPONDENT,    v.    FREDERICK    S 
GAYLORD  AND  CHESTER  GAYLORD,  APPELLANTS. 

Lessee  and  surety  —  can  be  sued  jointly,  under  Code,  §120 —  Continuing  guarantee. 

A  lease  was  signed  by  F.  8.  G.,  and  then  by  C.  Q.  Opposite  to  the  name  of  the 
latter  (whose  name  did  not  appear  in  tb*»  body  of  the  lease)  was  written, 
"security  for  Frederick  S.  Gaylord."  Held,  that  both  could  be  sued  in  one 
action  under  section  120  of  the  Code. 

rhe  lease  was  for  one  year,  but  had  a  provision  in  it  in  these  words:  "  This  con- 
tract is  to  be  renewed  for  three  consecutive  years,  if  it  is  fulfilled  to  the  satis- 
faction of  both  parties."  Held,  that  the  guarantee  was  continuing  and  the 
guarantor  liable  for  the  second  year's  rent  in  default. 

Carman  \.  Plats  (23  N.  Y.,  286)  followed. 

APPEAL  from  a  judgment  entered  on  the  verdict  of  a  jury.  The 
action  was  brought  to  recover  a  balance  due  on  a  lease  of  a  certain 
farm  in  Phelps,  Ontario  county,  being  the  balance  of  rent  due  on 
the  lease  from  April  1,  1874,  to  April  1,  1875.  The  lease  is  dated 
April  1,  1873,  and  was  for  one  year,  but  contained  this  clause  : 
"  This  contract  is  to  be  renewed  for  three  consecutive  years  if  it  is 
fulfilled  to  the  satisfaction  of  both  parties;"  it  was  signed  by 
Arethusa  Decker,  the  plaintiff,  and  then  by  the  defendant,  Fred- 
erick S.  Gaylord,  the  lessee,  with  their  seals,  and  then  as  follows : 
"  Chester  Gaylord,  security  for  Frederick  S.  Gaylord."  Frederick 
S.  Gaylord  continued  to  occupy  the  premises  until  April  1,  1875. 

Faurot  &  Gooding,  for  the  appellants. 
Metcalf  &  Field,  for  the  respondent. 

E.  DAEWIN  SMITH,  J. : 

The  chief  point  in  controversy  in  this  case  relates  to  the  form 
of  the  action.  The  defendants'  counsel  claimed  at  the  Circuit, 
that  the  defendants  could  not  be  sued  and  held  liable  together  in 
one  action  and  that  their  contracts  were  separate,  and  that  they 
must  be  sued  thereon  separately.  The  learned  judge  ruled  that 
the  parties  were  jointly  liable  and  the  defendants'  counsel  duly 
excepted. 


DECKER  v.  GAYLORD.  Ill 

FOURTH  DEPARTMENT,  JUNE  TERM,  1876. 

It  is  clear,  I  think,  that  the  judge  was  in  error  if  he  intended 
to  decide,  that  the  defendants  were  joint  lessees  of  the  plaintiff,  01 
that  they  could  be  held  liable  upon  the  lease  given  in  evidence  in 
that  capacity.  The  lease  was  clearly  a  contract  between  the  plain- 
tiff and  the  defendant  Frederick  S.  Gaylord.  He  was  the  lessee 
and  the  sole  contracting  party  as  such  in  the  lease,  and  the  defend- 
ant Chester  signed  the  same  as  his  surety,  and  is  not  a  lessee 
named  in  the  lease,  and  he  did  not  make  himself  a  party  to  the 
same,  except  as  a  guarantor,  or  as  he  expressed  it  in  words  follow- 
ing his  signature,  as  "  security  fw  Frederick  S.  Gaylord"  This 
was  quite  like  the  case  of  Gould  v.  Moring  (28  Barb.,  444),  where, 
at  the  foot  of  a  certificate  or  statement  of  a  leasing  by  the  lessee  ot 
certain  premises  stating  the  terms  and  signed  by  him,  his  name 
was  followed  with  the  words  "  security  H.  E.  Moring."  This  was 
held  a  guarantee,  or  a  collateral  agreement  to  pay  the  rent  if  the 
lessee  did  not,  and  a  separate  and  distinct  contract  from  that  of  the 
lessee's,  following  the  case  of  Brewster  v.  Silence  (4  Seld.,  207) ;  and 
it  was  also  held,  as  it  was  in  the  latter  case,  that  a  joint  action 
would  not  lie  against  both  parties.  These  cases  are  authority  for 
the  defendants'  position  here  and  at  the  Circuit. 

But  these  cases  are,  on  that  point,  overruled  by  the  case  of  Car- 
man v.  Plass  (23  N.  Y.,  286),  where  a  sounder  view  of  the  ques- 
tion is  taken,  and  proper  force  given  to  section  120  of  the  Code, 
which  declares,  that  "  persons  severally  liable  upon  the  same  obli- 
gation or  instrument,  including  the  parties  to  bills  of  exchange 
and  promissory  notes,  may  all  or  any  of  them  be  included  in  the 
same  action  at  the  option  of  the  plaintiff."  That  decision  was 
made  in  respect  to  the  lessee,  and  a  guarantee  of  the  payments  by 
such  lessee  of  the  covenants  in  a  lease  quite  analogous  to  the  present 
one,  and  is  decisive  of  this  case. 

The  plaintiff  was,  therefore,  entitled  to  recover  against  both 
defendants  in  the  action  as  held  by  the  Circuit  judge,  though  not 
ipon  the  precise  ground  stated  by  him.  The  ruling  was  right  in 
legal  effect,  and  it  did  no  injury  to  the  defendant  that  it  was  put 
upon  an  erroneous  ground. 

The  ruling  of  the  Circuit  judge  was  also  correct  in  respect  to 
the  liability  of  Chester  Gaylord  for  the  second  year's  rent.  The 
contract  of  guarantee  was  a  continuing  one,  running  with  the  lease 


112  FRANKLIN  v.  SCHERMERHORN. 

FOURTH  DEPARTMENT^  JUKE  TERM,  1876. 

if  the  same  were  renewed  by  the  parties  for  a  second  year,  and 
third  year  successively. 

If  the  lease  was  renewed  for  the  second  year,  by  the  parties 
thereto,  that  is  by  the  lessor  and  lessee  named  therein,  the  defend- 
ant Chester  Gaylord  continued  liable  as  security  that  his  princi- 
pal should  perform  the  covenants  of  said  lease  on  his  part  for  said 
second  year. 

I  see  no  substantial  error  in  result  and  legal  effect  committed 
by  the  Circuit  judge,  and  I  think  we  should  affirm  the  judgment. 

Judgment  affirmed. 

Present  —  MULLIN,  P.  J.,  SMITH  and  TALCOTT,  JJ. 
Judgment  affirmed. 


BELLA  L.  FRANKLIN,  RESPONDENT,  v.  BENJAMIN  C. 
SCHERMERHORN  AND  SARAH  A.  SCHERMERHORN, 
APPELLANTS.* 

Civil  damage  act — Chapter  646,  Laws  of  1873,   constitutional — Vague  and  inex- 
plicit—  what  recoverable  under — Exemplary  damages. 

Chapter  646,  of  the  Laws  of  1873,  known  as  the  civil  damage  act,  was  within  the 
clear  discretion  of  the  legislature  as  part  of  its  police  and  sovereign  power, 
and  is  not  within  any  of  the  prohibitory  clauses  of  the  Constitution. 

The  act  is  so  vague  that  while  the  legislature  doubtless  intended,  to  give  a  single 
right  of  action  and  single  damages  to  one  person,  a  right  of  action  is  given,  or 
may  arise,  to  a  husband  or  wife  and  each  of  their  children,  be  they  ever  so  many. 

Where  the  husband  of  the  plaintiff  was  a  cripple  and  could  earn  but  little  for  the 
support  of  his  family,  consisting  of  the  plaintiff  and  four  children,  and  he 
received  a  quarterly  pension  of  fifty-four  dollars,  and  on  the  day  he  received  it 
got  intoxicated,  in  part  at  the  defendants'  house,  and  thereby  lost  or  had  stolen 
fifty  dollars,  field,  that  under  the  statute,  the  plaintiff,  as  wife,  was  only  enti- 
tled to  recover  her  proportionate  share,  or  one-fifth  thereof,  and  that  it  wa« 
error  on  the  part  of  the  Circuit  judge  to  refuse  so  to  charge. 

Fhe  verdict  of  the  jury  was  for  $175.  Held,  that  it  was  not  a  case  for  exemplary 
damages ;  that  although  the  jury,  in  this  class  of  cases,  have  the  right  to  give  exem 
plary  damages,  yet  they  should  only  be  given  where  there  are  circumstances  ot 
abuse  or  aggravation  proved  on  the  part  of  the  vendor  of  the  liquor,  whicb 
were  wanting  in  this  case. 

*  See  post,  pp.  128, 148. 


FRANKLIN  v.  SCHERMERHORN.  113 

FOURTH  DEPARTMENT,  JUNE  TERM,  1876. 

APPEAL  from  a  judgment  entered  on  the  verdict  of  a  jury,  in 
favor  of  the  plaintiff  and  against  the  defendants,  and  from  an  order 
denying  a  motion  made  at  Special  Term  for  a  new  trial  founded  on 
a  bill  of  exceptions. 

The  defendants  were  husband  and  wife,  and  the  wife  was  the 
owner  of  the  premises  upon  which  the  husband  had  kept  a  hotel 
for  two  years  and  over,  prior  to  the  21st  of  September,  1874. 
Plaintiff 's  husband  was  a  cripple,  and  on  or  about  the  20th  of 
September,  1874,  went  to  Belmont,  drew  his  pension  money,  fifty- 
four  dollars,  and  afterwards  went  to  defendants'  hotel  and  drank 
intoxicating  liquor,  and  from  what  he  drank  then  and  what  he  had 
drank  before,  became  intoxicated,  and  through  some  means  got 
hurt  and  lost  fifty  dollars  in  money.  Plaintiff  and  her  husband  had 
four  children  under  eight  years  of  age  who  were  supported  by  the 
husband  from  his  labor  and  from  his  pension  money.  This  action 
was  brought  under  chapter  646,  Laws  of  1873.  On  the  trial  the 
jury  gave  a  verdict  for  plaintiff,  for  $175. 

Angel  t&  Jones,  for  the  appellants. 
V.  A.   Willard,  for  the  respondent. 

E.  DABWIN  SMITH,  J. : 

The  question  raised  at  the  Circuit  and  discussed  at  Special  Term 
in  respect  to  the  constitutionality  of  the  civil  damage  act  (chap. 
646  of  the  Laws  of  1873,  p.  1016),  was  correctly  disposed  of  at  the 
Circuit  and  at  Special  Term,  and  the  exceptions  to  the  decision  of 
the  Circuit  judge  not  well  taken.  To  enact  such  a  statute  was 
within  the  clear  discretion  of  the  legislature,  as  part  of  its  police 
and  sovereign  power,  and  is  not  in  conflict  with  any  of  the  prohib- 
itory clauses  of  the  Constitution  of  the  United  states  or  of  the  State 
Constitution.  The  act  must  be  deemed  part  of  the  excise  law  of 
the  State,  which  has  been  repeatedly  held  constitutional.  (Metro- 
politan Board  of  Excise  v.  Barrie,  34  N.  T.,  657  ;  Baker  v.  Pope, 
5  N.  Y.  Sup.  Ct.  [T.  &  C.],  102.) 

The  act  is  too  vague  and  inexplicit,  and  presents  much  difficulty 
in  its  practical  operation  for  the  construction  of  the  courts,  and  it 
certainly  requires,  if  it  is  to  remain  upon  the  statute  book,  consid- 
x— VOL.  VIII.  ff 


114  FRANKLIN  v.  SCHERMERHORK 

FOURTH  DEPARTMENT,  JUNK  TERM,  1876. 

erable  amendment  and  modification.  While  the  legislature  has 
provided  in  the  general  excise  law  for  granting  license  for  the  sale 
of  intoxicating  drinks,  it  has  superadded  in  legal  effect  in  this 
statute,  that  such  license  shall  be  given,  taken  and  received  subject 
to  the  qualifications  contained  in  this  act ;  and  that  every  person 
taking  such  license  shall  be  personally  responsible  for  the  conse- 
quences involved  in  the  sale  of  such  liquors. 

The  act  admits,  if  it  does  not  require,  a  construction  far  more 
sweeping,  I  think,  than  could  have  been  intended  by  the  legislature. 
This  case  presents  an  instance  of  the  intrinsic  injustice  involved  in 
its  practical  working. 

The  first  section  of  the  act  declares  that  "  every  husband,  wife, 
child,  parent,  guardian,  employe  or  other  person,  who  shall  be 
injured  in  person  or  property,  or  means  of  support,  by  any  intoxi 
cated  person,  or  in  consequence  of  the  intoxication,  habitual  or  other- 
wise, of  any  person,  shall  have  aright  of  action  in  his  or  her  name, 
against  any  person  who  shall,  by  selling  or  giving  away  intoxicating 
liquors,  cause  the  intoxication,  in  whole  or  in  part,  of  such  person 
or  persons."  The  legislature,  I  think,  intended  to  give  a  single 
right  of  action,  and  single  damages  to  one  person  ;  but  a  right  of 
action  is  given,  or  may  arise  to  a  husband  or  wife,  and  each  of  their 
children,  be  they  ever  so  many,  as  well  as  to  the  other  persons 
named  in  said  section. 

In  this  case  the  action  is  brought  by  a  wife,  and  the  proofs  show 
tbat  she  had  four  children  under  the  age  of  eight  years.  That  her 
husband  was  a  cripple  and  could  earn  but  little  for  the  support  of  hie 
family,  and  that  he  received,  quarterly,  a  pension  of  fifty-four  dol- 
lars ;  that  on  the  20th  of  September,  1874,  he  received  such  pen- 
sion and  got  intoxicated,  in  part,  at  the  defendant's  house,  and  lost 
his  money,  and  received  some  injury  while  so  intoxicated,  which 
interfered,  to  some  extent,  with  his  capacity  for  work,  but  what  the 
injury  was,  and  how  it  affected  him,  and  how  long  he  was  so  affected, 
does  not  appear. 

It  is  apparent  from  the  evidence  that  the  jury  might  properly 
find  that  the  fifty  dollars,  the  amount  remaining  unspent  by  him, 
was  lost  (though  probably  stolen),  in  consequence  of  his  intoxica- 
tion. In  this  view  they  were  entitled  to  give  the  plaintiff  a  ver- 
dict for  her  proportionate  share  of  this  fifty  dollars  upon  the  evi 


FRANKLIN  v.  SCHERMERHORN.  Hf» 

FOURTH  DEPARTMENT,  JTJNE  TERM,  1876. 

dence  in  the  case.  She  testified  that  she  and  her  children  were 
dependent  upon  her  husband  for  support,  and  that  he  was  unable 
to  support  them  without  this  pension.  This  fifty  dollars  was  neces- 
sary in  this  view  for  the  support  of  herself,  her  husband  and  their 
four  children.  If  the  statute  had  given  her  the  right  to  sue  in 
behalf  of  herself  and  all  of  her  children,  or  family  dependent  upon 
this  money,  or  the  services  of  the  father  for  their  support,  or  a 
guardian  had  been  appointed  for  these  children,  and  their  respect- 
ive interests  had  been  duly  assigned  to  her,  then  the  real  object 
of  this  statute  could  have  been  carried  out  by  a  single  verdict  ;  but 
now  she  was  not  entitled  to  recover  but  one-fifth  of  the  amount  of 
said  fifty  dollars,  while  in  fact  under  the  evidence  I  should  pre- 
sume that  the  jury  actually  took  into  account,  and  must  undoubt- 
edly have  done  so,  the  fact  that  she  was  the  mother  of  four  infant 
children  deprived  in  part  of  their  means  of  support  through  the 
intoxication  of  their  father. 

The  jury,  I  think,  under  the  charge  and  under  the  refusal  to 
charge  as  requested,  that  the  plaintiff  could  not  recover  separately 
the  whole  fifty  dollars,  and  that  each  of  the  children  could  main- 
tain a  separate  action  for  the  damages  sustained  by  either  of  them 
respectively  for  the  same  cause,  did  in  fact  in  their  verdict  find  for 
the  plaintiff  for  the  loss  of  the  whole  of  said  fifty  dollars.  Their  ver- 
dict was  $175,  and  there  is  no  basis  that  we  can  see  for  such  a  ver- 
dict in  the  evidence,  except  for  said  fifty  dollars.  The  case  was 
not  one  for  exemplary  damages  so  far  as  we  can  see  from  the  evi- 
dence contained  in  the  bill  of  exceptions,  and  if  the  question  came 
before  us  upon  a  case,  we  should  feel  bound  to  grant  a  new  trial  for 
excessiveness  of  the  damages.  The  jury  in  this  class  of  cases  have 
power  to  give  exemplary  damages,  but  they  clearly  should  not  be 
allowed  to  do  so  in  ordinary  cases  where  nothing  is  proved  but  the 
simple  sale  of  a  single  glass  of  liquor  under  ordinary  circumstances. 
Exemplary  damages  should  only  be  given  when  there  are  circum- 
stances of  abuse  or  aggravation  in  the  case  proved  on  the  part  of 
the  vendor  of  the  liquor.  The  plaintiffs  husband  was  not  intoxi- 
cated solely  by  liquor  sold  him  at  the  defendants'  house,  but  in 
the  same  afternoon  and  evening  it  appears  he  had  purchased  and 
drank  liquor  at  three  other  places  before  he  drank  at  the  defend 
ants'  hotel. 


116  STEPHENS  v.  CASBACKER. 

FOURTH  DEPARTMENT,  JOHE  TERM,  1876. 

The  verdict  appears  to  us  too  large,  and  we  think  it  was,  if  so 
probably  caused  or  influenced  by  the  charge  of  the  Circuit  judge, 
and  his  refusal  to  charge  as  above  stated,  and  upon  this  ground 
think  the  judgment  should  be  reversed  and  a  new  trial  granted, 
with  costs  to  abide  the  event. 

Judgment  reversed  and  new  trial  granted,  costs  to  abide  event, 

Present  —  MULLIN,  P.  J.,  SMITH  and  TALCOTT,  JJ. 
Judgment  reversed  and  new  trial  ordered,  costs  to  abide  event. 


HANNAH  STEPHENS,  RESPONDENT,  v.  JOHN  CASBACKER, 

APPELLANT. 

Grantee  assuming  mortgage — may  be  released  by  his  grantor  —  Assent  of  mortgagee 

not  necessary. 

John  Hoffman  executed  a  mortgage  to  the  plaintiff;  afterward  he  conveyed  the 
premises  covered  by  the  mortgage  to  the  defendant  Casbacker,  subject  to  such 
mortgage  which  Casbacker  assumed  to  pay.  Casbacker  entered  under  his  deed 
and  made  payments  on  the  mortgage,  to  the  plaintiff.  Afterward,  Hoffman 
requested  Casbacker,  in  writing,  to  convey  the  premises  to  his  brother  Lewis, 
and  in  consideration  thereof  executed  a  release,  under  seal,  to  Casbacker,  of  all 
obligations  assumed  by  Casbacker  under  the  deed  from  him.  In  an  action 
by  the  plaintiff  against  Casbacker,  to  recover  the  amount  due  on  the  mortgage, 
held,  that  the  release  by  Hoffman  to  Casbacker  operated  as  a  discharge  from  all 
obligations  assumed  under  the  deed  to  him. 

APPEAL  from  a  judgment,  entered  upon  the  report  of  a  referee, 
in  favor  of  the  plaintiff  and  against  the  defendant,  for  $3,630.50. 

The  plaintiff,  Hannah  Stephens,  on  October  21st,  1871,  con- 
veyed to  John  Hoffman  an  acre  or  thereabouts  of  land,  in  the 
town  of  Leyden,  in  the  county  of  Lewis,  on  which  were  buildings 
occupied  as  a  tavern  stand.  At  the  same  time,  to  secure  the  pay- 
ment of  the  price  of  the  premises,  John  Hoffman  executed  to  Han- 
nah Stephens,  the  plaintiff,  his  bond  with  a  mortgage  on  the  prem- 
ises for  $3,600,  payable  in  installments  with  annual  interest,  and 
Hoffman  took  possession  of  the  premises  and  continued  in  posses- 
sion till  July  12th,  1872,  when  he  sold  and  conveyed  the  premises 


STEPHENS  v.  CASBACKER.  l!7 

FOURTH  DEPARTMENT,  JUNE  TERM,  1876. 

to  the  defendant  in  this  action,  John  Casbacker,  the  deed  accepted 
by  Casbacker  containing  this  clause  :  "  Subject,  however,  to  a  cer- 
tain mortgage  executed  by  said  John  Hoffman  to  Hannah 
Stephens,  to  secure  the  payment  of  the  purchase-price  of  said 
premises,  and  which  said  mortgage  is  assumed  by  said  John  Cas- 
backer." Casbacker  took  possession  of  the  premises  under  this 
deed  and  made  some  payments  on  the  mortgage  to  the  plaintiff, 
till  about  April  5th,  1873,  when  John  Hoffman  bargained  with  him 
for  a  reconveyance  of  the  premises,  and  by  an  instrument  in 
writing  requested  the  defendant  to  convey  the  premises  to  John's 
brother,  Lewis  Hoffman,  who,  he  said,  was  fully  authorized  to 
receive  such  conveyance,  and  in  consideration  of  said  reconveyance 
or  conveyance  to  his  brother,  at  his  request,  said  John  Hoffman 
executed  and  delivered  to  the  defendant  an  instrument  in  writing, 
under  his  seal,  whereby  he  released  the  defendant  from  all  the  obli- 
gations assumed  by  the  latter  on  the  purchase  of  said  premises,  and 
especially  all  liability  on  the  mortgage  given  by  him,  John  Hoff- 
man, to  Hannah  Stephens,  for  the  purchase  money  of  said  prem- 
ises, and  the  defendant  accordingly  conveyed  the  mortgaged 
premises,  April  7th,  1873,  to  said  Lewis  Hoffman  by  deed,  charg- 
ing the  plaintiff's  mortgage  on  the  premises,  and  stating  its  pay- 
ment was  assumed  by  said  Lewis  Hoffman.  The  defendant  there- 
upon removed  from  the  premises,  which  were  taken  possession  of 
by  said  Lewis  Hoffman,  who  has  ever  since  continued  in  the  actual 
or  constructive  possession  thereof  as  owner.  Lewis  Hoffman  made 
a  payment  on  the  mortgage  to  the  plaintiff,  July  25,  1873,  and  she 
receipted  it  to  him.  Also  another  payment  in  November,  1873, 
which  she  also  acknowledged  to  him  and  indorsed  its  receipt  as 
from  him  on  the  bond. 

In  October,  1873,  the  plaintiff  caused  an  insurance  to  be  effected 
on  the  buildings,  for  $1,500,  and  paid  the  premium  out  of  the 
money  she  had  received  from  Lewis  Hoffman  to  apply  on  the  mort- 
gage. In  December,  1873,  the  buildings  on  the  premises  were 
destroyed  by  fire.  The  insurance  company  failed,  and  nothing  was 
realized  from  the  insurance. 

The  mortgage  has  not  been  foreclosed;  the  premises  are  now 
insufficient  security  for  the  debt,  and  this  action  was  brought  to 
compel  the  defendant,  John  Casbacker,  to  pay  it,  on  the  theory 


118  STEPHENS  y.  CASBACKER. 

FOURTH  DEPARTMENT,  JUNE  TERM,  1876. 

that  he  remains  personally  liable  to  the  plaintiff  on  account  of  hit 
contract  with  John  Hoffman. 


B.  J.  JBeachy  for  the  appellant. 
Ward  Himt,  Jr.,  for  the  respondent. 

E.  DARWIN  SMITH,  J. : 

Within  the  cases  of  Burr  v.  Beers  (24  N.  Y.,  178);  Ricard  v. 
Sanderson  (41  id.,  179) ;  Thorp  v.  The  Keokuk  Coal  Company  (48 
id.,  253);  and  Lawrence  v.  Fox  (20  id.,  268),  it  must  be  deemed 
settled  law  in  this  State  that  where  a  party  accepts  a  deed  of  land 
subject  to  a  mortgage  and  assumes  to  pay  such  mortgage  as  part  of 
the  purchase-price  of  said  premises,  that  the  holder  of  such  mort 
gage  may  maintain  an  action  at  law  upon  such  covenant,  against 
such  grantee,  for  the  amount  remaining  unpaid  upon  such  mort- 
gage according  to  its  terms  or  those  of  the  bond  accompanying  the 
same. 

It  is  needless  to  discuss  the  principle  upon  which  such  right  of 
action  rests,  as  the  judges  have  quite  obviously  been  unable  to 
agree  on  that  point ;  but  have  agreed  with  considerable  unanimity 
that  the  law  will  imply  whatever  of  reason  or  principle  may  be 
necessary  to  sustain  the  action.  It  is  too  late  to  question  the  reason 
or  the  law. 

This  case  presents  a  new  element  for  discussion  not  embraced  in 
either  of  the  above  mentioned  cases,  or  in  any  of  the  numerous 
cases  in  the  reports  of  this  State  where  the  doctrine  asserted  in 
Lawrence  v.  Fox  (supra)  has  been  followed  or  asserted,  except  the 
case  of  Hartley  v.  Harrison  (24  N.  Y.,  1 70). 

In  this  case  it  appears  that  the  plain tif/  ..old  the  laud  to  one  John 
Hoffman  and  took  from  him  the  ben'  and  mortgage  in  question. 
Said  Hoffman  afterward  sold  the  F<rld  premises  to  the  defendant, 
subject  to  said  mortgage,  which  tho  defendant  assumed  to  pay.  The 
defendant  went  into  possession,  and  made  one  or  two  payments  on 
said  mortgage,  and  then,  at  the  instance  and  written  request  of  the 
said  John  Hoffman,  conveyed  said  premises  to  a  brother  of  ?aid 
Hoffman,  and  on  the  same  day  took  from  said  Hoffman  a  release 
under  seal  duly  executed  by  said  Hoffman  releasing  him  froit  il1 


STEPHENS  v.  CASBACKER.  119 

FOURTH  DEPARTMENT,  JUNE  TERM,  1876. 

liability  on  the  bond  and  mortgage  to  the  plaintiff,  and  from  aL 
obligation  assumed  by  him  in  the  purchase  of  said  premises,  and 
agreeing  himself  to  pay  any  deficiency  which  might  arise  upon  a 
foreclosure.  The  defendant  surrendered  possession  of  said  prem- 
ises on  the  execution  of  such  deed  and  release  to  Lewis  Hoffman, 
the  grantee  in  such  deed. 

The  learned  referee,  upon  the  authority  of  the  above  mentioned 
case  of  Hartley  v.  Harrison,  held  that  such  release  did  not  discharge 
the  liability  of  the  defendant  assumed  in  the  deed  to  him  from  said 
Hoffman,  to  pay  the  mortgage  of  the  plaintiff  referred  to  in  said 
deed. 

The  covenant  in  said  deed  to  pay  the  mortgage  held  by  the 
plaintiff  on  said  premises  was  strictly  a  contract  between  the 
defendant  and  John  Hoffman.  The  consideration,  a  conveyance 
of  said  land,  came  from  John  Hoffman.  There  was  no  privity  of 
contract  between  the  defendant  and  the  plaintiff. 

It  is  difficult  to  see  upon  what  principle,  if  John  Hoffman  and 
the  defendant  were  competent  to  make  such  contract,  they  were 
not  likewise  competent  to  change  or  rescind  the  same. 

While  the  defendant  remained  in  possession  of  said  premises  and 
said  covenant  remained  as  between  the  parties  in  full  force  unre- 
voked  or  unrescinded,  the  plaintiff  might  doubtless  have  maintained 
an  action  upon  it,  or  held  the  defendant  responsible  for  any  defi- 
ciency upon  a  foreclosure  of  said  mortgage.  But  I  can  see  no 
ground  or  reason  in  principle,  why  during  such  period  the  said 
Hoffman  might  not  release  the  defendant  from  the  personal 
obligation  involved  in  such  covenant,  leaving  the  land  simply 
subject  to  said  mortgage,  as  he  might  have  originally  conveyed 
the  same. 

The  case  of  Hartley  v.  Harrison  does  not,  I  think,  fairly  consid- 
ered, sustain  the  decision  of  the  learned  referee,  that  the  defendant 
remained  liable  upon  the  covenant  in  said  deed  after  the  execution 
and  delivery  of  said  release.  Some  of  the  parts  or  passages  in  the 
opinion  in  that  case  do  undoubtedly  go  to  that  extent  and  warrant 
the  conclusion  of  the  referee,  but  these  parts  of  the  opinion  are 
mere  dicta,  and  were  clearly  not  assented  to  by  the  other  members 
of  the  court. 

The  report  of  the  case  states  that  all  the  judges  concurred  in  the 


120  STEPHENS  i?.  CASBACKER. 

FOURTH  DEPARTMENT,  JUNE  TERM,  1876. 

result  except  Judge  COMSTOCK  ;  that  they  disclaimed,  however,  any 
intention  to  pass  upon  the  question  whether  the  releases  were  not 
valid  and  effectual  to  discharge  the  grantee,  Joseph  Harrison,  from 
any  liability  to  the  mortgagee  for  the  payment  of  the  mortgage,  and 
Judge  COMSTOCK  dissented  from  the  decision. 

That  was  an  action  in  equity  for  the  foreclosure  of  three  mort- 
gages. Two  of  said  mortgages  were  given  upon  a  usurious  agree- 
ment for  a  loan  of  money.  Subsequent  to  the  execution  of  said 
mortgages,  the  mortgagor  sold  and  conveyed  the  land  covered  by 
said  mortgages,  to  the  defendant  Joseph  Harrison,  by  deed,  with 
warranty,  subject  to  the  payment  of  said  mortgages,  which  the 
grantee  in  said  deed  assumed  to  pay  as  part  of  the  purchase  money 
for  said  land  and  premises.  After  issue  joined  in  said  action  the 
said  original  mortgagor  released  the  defendant  from  the  covenant 
contained  in  said  deed,  and  covenanted  that  the  said  agreement 
contained  in  said  deed  in  respect  to  the  said  mortgages  was  annulled, 
and  that  such  conveyance  should  have  the  same  effect  as  if  such 
agreement  was  not  contained  therein. 

The  cause  was  tried  by  a  referee,  who  held  that  the  release  and 
covenant  was  inoperative  to  authorize  the  grantee  of  the  land  to 
avail  himself  of  the  defense  of  usury ;  that  the  relations  of  the 
parties  to  the  premises  which  had  been  appropriated  as  the  fund 
for  the  payment  of  the  mortgage  could  not  be  changed  without  the 
assent  of  the  plaintifl',  and  directed  judgment  for  the  sale  of  the 
land  for  the  payment  of  the  mortgages,  and  that  neither  the  mort- 
gagor nor  Joseph  Harrison,  the  grantee  in  said  deed,  were  person- 
ally liable  for  any  deficiency  that  might  arise  upon  the  sale. 

The  learned  referee,  the  Hon.  Addison  Gardiner,  did  in  fact  give 
effect  to  said  release,  and  held  that  the  mortgagor  was  discharged 
thereby  from  personal  liability  on  the  covenant  in  said  deed.  This 
decision  was  affirmed  at  the  General  Term  in  the  seventh  district, 
I  presume,  upon  the  opinion  of  the  referee. 

The  affirmance  of  this  judgment  in  the  Court  of  Appeals,  where 
six  of  the  eight  judges  declined  to  pass  upon  the  question  whether 
the  release  was  valid  and  effectual  to  discharge  the  grantee  from 
any  personal  liability  to  pay  said  mortgage,  with  the  distinct  opin- 
ion of  Judge  COMSTOCK  on  the  point,  in  which,  in  his  dissenting 
opinion,  he  said  that  "  he  had  doubt  such  was  the  effect  01  the 


STEPHENS  v.  CASBACKER.  121 

FOURTH  DEPARTMENT,  JUNE  TERM,  1876. 

release,"  certainly  must  leave  the  affirmative  and  negative  weight 
of  opinion  on  the  point  in  favor  of  the  validity  of  such  release. 

The  judgment  in  that  case  was  clearly  right  upon  the  ground 
upon  which  it  was  put  by  the  referee.  The  mortgage  remained  a 
valid  lien  upon  the  land,  and  was  not  subject  to  a  defense  of  usury 
interposed  by  Joseph  Harrison,  who  had  taken  the  title  to  it  sub- 
ject to  the  mortgage  without  payment  of  any  other  consideration. 
The  Court  of  Appeals  affirmed  this  view,  and  nothing  else,  I 
think,  in  the  decision. 

I  think  we  should,  therefore,  follow  the  actual  decision  in  that 
case,  as  made  by  the  referee  and  affirmed  in  this  court  and  the  Court 
of  Appeals,  that  a  release  executed  as  the  one  was  in  this  case  by 
Hoffman  to  the  defendant,  was  and  is  a  valid  discharge  of  his 
covenant,  so  far  as  relates  to  his  personal  liability  thereon,  leaving 
the  land  subject  to  the  mortgage.  There  is  no  reason  in  law  or 
equity,  as  I  can  conceive,  which  should  lead  us  to  an  opposite  con 
elusion.  It  would  be  a  great  hardship  and  wrong,  as  it  seems  to 
me  in  this  particular  case,  to  apply  a  different  rule  to  this  defend- 
ant. He  had  relinquished  the  possession  and  title  of  the  land  to 
his  grantor  after  receiving  the  release  in  question.  It  was  a  vir- 
tual rescission  of  the  contract  of  sale  with  a  reconveyance  of  the 
land,  and  I  cannot  admit  that  there  is  any  principle  of  law  which 
requires  that  he  be  held  to  any  further  liability  upon  said  deed  or 
conveyance. 

The  judgment  should  therefore  be  reversed  and  a  new  trial 
granted,  with  costs  to  abide  the  event. 

Judgment  reversed. 

TALOOTT,  J.,  concuA.od  ;  MTJLLIN,  P.  J.,  dissented. 

Judgment  reversed  and  new  trial  granted  before  another  releree, 
with  costs  to  abide  event. 

The  precise  point  presented  in  the  above  case  seems  to  have  been  discussed  by 
the  present  Court  of  Appeals,  in  distinguishing  between  the  liability  of  a  second 
mortgagee,  who  assumed  payment  of  a  first  mortgage,  and  that  of  a  grantee 
assuming  such  liability,  in  Oarnsey  v.  Rogers  (47  N.  Y.,  242),  where  the  court 
•ay:  "It  must  further  be  considered  that,  when  such  an  assumption  is  made 
on  an  absolute  conveyance  of  land,  it  is  unconditional  and  irrevocable.  The 
grantor  cannot  retract  his  conveyance,  or  the  grantee  his  promise  or  undertak 
,ng  »  #  *  *  ••  The  reservation  of  this  right  "  (i,  e.,  of  the  grantor  to  discharge 
HUN— VOL.  VIII.  16 


122  CORNWELL  v.  DECK. 

FOURTH  DEPARTMENT,  JXTNE  TERM,  1876. 

the  grantee  from  the  payment  of  the  mortgage)  "  is  inconsistent  with  the  idea 
that  the  assumption  by  the  grantee  was  for  the  benefit  of  the  prior  mortgagee;  for 
if  it  were,  the  grantor  would  have  no  control  over  the  rights  thus  acquired  by  a 
third  party." 

This  case  was  not  cited  in  the  points  of  counsel,  and  does  not  appear  to  hav« 
been  brought  to  the  attention  of  the  court. 

In  the  Second  Department,  in  Simson  v.  Brown  (6  Hun,  251),  it  is  held,  that 
the  rights  of  the  party  for  whose  benefit  the  contract  is  made  cannot  be  taken 
from  him  by  the  act  of  the  other  parties. —  [REP. 


LUCILLA   CORNWELL,  ADMINISTRATRIX,  ETC.,  APPELLANT,  t>. 
SOLOMON  DECK  AND  OTHERS,  RESPONDENTS. 

Negligence  —  of  administratrix,  in  keeping  money  of  the  estate  —  what  is. 

A  n  administratrix  kept  a  large  amount  of  money  (the  collections  from  the  sales 
of  goods  in  a  store  and  .of  notes  and  accounts  of  the  intestate),  in  a  trunk  in  a 
bedroom  occupied  by  her  crippled  son,  being  one  of  the  rooms  occupied  by  her 
family  adjoining  the  store.  Part  of  such  collections  had  been  kept  there 
over  a  year.  The  nearest  bank  was  twelve  miles  from  where  she  lived.  The 
money  was  stolen.  Held,  that  had  the  money  been  only  a  portion  of  the  estate 
lately  collected,  and  had  the  rest  been  deposited  in  bank,  she  might  have  been 
held  authorized  to  keep  the  same  where  she  did,  until  a  proper  opportunity  to 
deposit  it  in  the  bank  occurred;  but  as  the  whole,  or  nearly  all,  the  fund  bad 
been  allowed  to  remain  in  such  an  insecure  place  for  nearly  a  year,  when  it  was 
finally  stolen,  it  was  such  a  violation  of  the  ordinary  laws  of  prudence  as  rx>n- 
stituted  negligence  for  which  she  was  liable 

APPEAL  from  a  decree  of  the  surrogate  of  the  county  of  Steuben, 
on  a  final  accounting,  refusing  to  allow  the  administratrix  credit 
for  moneys  of  the  estate  stolen,  on  account  of  negligence.  The 
defendants  were  creditors  of  the  estate,  which  was  insolvent. 

The  appellant  is  the  widow  of  one  A.  Cornwell  and  was  appointed 
the  administratrix  of  his  estate,  April  16,  1872.  Deceased  was  a 
merchant  at  Woodhull.  The  estate  consisted  of  a  stock  of  goods 
in  the  store  there,  besides  accounts  and  notes.  The  administratrix, 
who  was  an  old  lady,  employed  her  son  to  sell  the  goods  at  retail 
and  collect  the  accounts.  She,  with  her  family,  occupied  rooms 
adjoining  the  store,  and  kept  the  money  collected,  in  a  trunk  in  a 
bed -room  occupied  by  her  crippled  son.  On  the  20th  of  March, 
1873,  the  sum  of  about  $1,660  belonging  to  the  estate,  was  stolec 
from  said  trunk  and  never  recovered. 


CORNWELL  0.  DECK.  123 

FOURTH  DEPARTMENT,  JUNE  TERM,  1876. 

The  nearest  bank  was  twelve  miles  from  where  she  lived,  at 
which  her  husband  had  had  a  bank  book,  and  where  he  used  to 
deposit  money,  and  draw  checks.  The  place  of  deposit  of  the 
money  was  known  to  several  persons,  and  the  money,  or  a  portion 
of  it,  had  been  kept  there  for  nearly  a  year. 

J.  W.  Dininny,  for  the  appellant. 
G.  H.  McMaster,  for  the  respondents. 

E.  DAKWIN  SMITH,  J. : 

Whether  the  appellant  is  liable  for  the  loss  of  the  $1,660,  money 
belonging  to  the  estate  and  stolen  from  a  trunk  in  her  possession, 
is  the  question  presented  upon  this  appeal. 

In  Chambersburg  Savings  Bank  v.  MoLellan  (76  Penn.,  203), 
the  rule  is  stated  by  MUKCUJK,  J.,  in  respect  to  the  liability 
of  trustees,  as  follows:  "  It  is  well  settled  that  a  trustee  shall  not 
be  surcharged  by  a  court  of  equity,  for  a  loss  which  has  occurred 
in  case  he  has  exercised  common  skill,  common  prudence  and  com- 
mon caution,  but  for  supine  negligence  or  willful  default,  he  shall 
be  held  responsible." 

What  is  supine  negligence  must  depend  upon  the  nature  of  the 
property  to  a  great  extent.  While  it  might  not  be  negligent  to 
leave  furniture  and  ordinary  personal  property  in  any  room  in  an 
occupied  dwelling-house,  it  would  certainly  be  very  improper  to 
leave  money  or  jewels  in  such  a  place,  unless  they  were  secured  in 
an  iron  safe. 

In  1  Games'  Cases  in  Error  (Furman  v.  Coe,  page  96,  decided  in 
1804),  it  was  held,  that  the  executor  was  not  liable  where  a  body  of 
men  broke  into  his  house,  and  by  force  carried  away  funds  of  the 
estate.  The  fund  was  acquired  during  the  revolutionary  war  when 
the  country  was  distracted,  and  armed  bodies  of  men  were  roaming 
about.  It  does  not  appear  that  there  was  any  bank  or  safe  place 
of  deposit  near.  The  money  was  kept  in  a  strong  chest  in  an 
upper  chamber,  and  no  question  was  raised  that  the  executor  was 
negligent.  The  court  held  that  under  the  circumstances  he  was 
not  liable. 

The  trustee  at  the  present  time,  when  banks  and  places  of  safe 
deposit  so  largely  abound,  would,  probably,  under  the  same  cir 
curnstances,  be  held  liable  for  negligence,  because  a  man  of  com 


124  CORNWELL  v.  DECK. 

FOURTH  DEPARTMENT,  JUNE  TERM,  1876. 

mon  prudence  and  acting  with  common  caution  would  not  retain 
the  custody  of  money  and  valuables  liable  to  be  stolen  in  such  a 
place,  when  he  could  easily  deposit  them  in  a  place  of  safety.  It  is 
repeatedly  held  that  if  a  trustee,  in  the  exercise  of  his  best  judg- 
ment, deposits  money  in  a  bank  of  good  repute,  that  he  is  not  liable 
in  the  event  of  the  failure  of  the  bank.  In  Wharton  on  Negligence 
(§  519,  and  cases  there  cited),  it  is  held  that  a  guardian  having 
funds  of  his  ward  should  not  keep  it  in  his  house,  but  deposit  it 
in  bank.  An  executor  or  administrator  is  entitled  to  compensa- 
tion for  his  services  in  taking  care  of  the  estate,  and  held  to  a 
stricter  accountability  than  a  trustee  without  compensation. 

In  Litchfield  v.  White  (3  Seld.,  438),  it  is  held  that  an  assignee, 
under  a  voluntary  assignment  for  the  benefit  of  creditors,  being 
entitled  to  a  compensation,  is  chargeable  with  the  care  of  a  provi- 
dent owner  and  liable  for  a  loss  occasioned  by  ordinary  negligence. 
(See  also  9  Alb.  Law  Journal,  423,  and  cases  cited.)  The  admin- 
istratrix in  this  case  is  an  old  lady  unaccustomed  to  business,  which 
facts  go  to  palliate  what  would  in  an  ordinary  business  man  be 
gross  negligence,  yet  I  cannot  see  why  having  assumed  this  trust 
for  which  she  is  compensated,  and  having  gone  on  and  sold  the 
property  and  collected  the  debts  due  the  estate,  she  should  not  be 
held  to  the  exercise  of  at  least  common  prudence.  It  appears 
that  this  money  was  kept  in  a  place  known  to  several  persons. 
The  place,  to  be  sure,  was  a  bed-room  occupied  by  her  sick  son, 
but  it  was,  nevertheless,  a  very  insecure  depository  for  such  a  sum 
of  money,  and  presented  a  constant  temptation  to  take  it  even  to 
the  members  of  her  own  family.  Her  husband  had  kept  a  bank 
account,  of  which  she  was  aware.  Although  the  bank  was  some 
twelve  miles  off,  he  had  deemed  it  proper  to  deposit  in  it  there, 
and  she  could  and  should  have  done  the  same.  Had  this  money 
been  only  a  portion  of  the  estate  lately  collected,  and  had  the  rest 
been  deposited  in  bank,  she  might  be  held  authorized  to  keep  the 
same  where  she  did,  until  a  proper  opportunity  to  deposit  in  bank 
occurred,  but  the  whole,  or  nearly  all  this  fund  had  been  allowed 
to  remain  in  this  insecure  place  for  nearly  a  year,  until  it  was 
finally  stolen. 

If  executors  and  adminstrators  are  permitted  to  violate  the  most 
ordinary  laws  of  prudence  in  such  a  manner,  it  will  open  the  door 


ALIGER  v.  KEELER.  125 

FOURTH  DEPARTMENT,  JUNE  TERM,  1876. 

for  innumerable  frauds,  and  place  creditors  and  other  persons  inter- 
ested in  trust  funds  at  the  mercy  of  careless  and  reckless  trustees. 
I  think  the  decree  or  order  should  be  affirmed. 

Present  —  MULLIN,  P.  J.,  SMITH  and  TALOOTT,  JJ 
Decree  of  surrogate  affirmed,  with  costs. 


WILLIAM  ALIG-ER,  RESPONDENT,  v.  EBENEZER  KEELEB, 

APPELLANT. 

Heeeiptor —  right  of —  has  a  lien  for  his  fees. 

A  constable  levied  on  certain  property  under  a  judgment  in  favor  of  the  defend- 
ant, against  the  plaintiff,  and  committed  the  property  to  the  defendant  as  a 
receiptor.  Held,  that  the  latter  acquired  a  valid  lien  upon  the  property,  for  his 
just  and  lawful  charges  as  such;  that  payment  of  the  judgment  to  the  sheriff, 
upon  the  judgment  of  affirmance  rendered  upon  appeal  to  the  County  Court, 
did  not  discharge  the  lien  of  the  defendant,  or  of  the  constable  for  his  fees. 

APPEAL  from  a  judgment  in  favor  of  the  plaintitf  and  against 
the  defendant,  upon  the  report  of  a  referee. 

On  the  11  th  day  of  December,  1871,  the  defendant,  Ebenezer 
Keeler,  recovered  a  judgment,  before  a  justice  of  the  peace,  against 
the  plaintiff,  William  Aliger,  and  one  Clarissa  Yan  Vorhis  for 
twenty-nine  dollars.  On  the  12th  day  of  December,  1871,  an 
execution  was  issued  upon  said  judgment  against  the  property  of 
the  defendants  Aliger  and  Van  Vorhis,  and  on  the  26th  day  of  the 
same  month  it  was  levied  on  the  cattle  for  the  conversion  of  which 
this  action  was  brought. 

The  constable  took  possession  of  the  property  levied  on  and 
delivered  the  same  to  Ebenezer  Keeler,  the  defendant  in  this 
action,  as  a  receiptor  thereof. 

The  constable  advertised  the  property  for  sale,  but  the  sale  was 
.stayed  by  an  appeal  to  the  County  Court  and  by  the  giving  of  an 
undertaking. 

The  judgment  of  the  justice  was  affirmed  by  the  County  Court 
on  the  29th  day  of  September,  1873 ;  and  on  the  30th  day  of  the 
same  month  an  execution  was  issued,  upon  the  judgment  of  the 
County  Court,  to  the  sheriff  of  Steuben  county. 


126  AL1GER  v.  KEELER. 

FOT-RTH  DEPARTMENT,  JUKE  TERM,  1876. 

At  some  time  thereafter  the  amount  of  that  execution  was  paid 
to  the  sheriff. 

On  the  6th  day  of  January,  1874,  the  cattle  in  question  still 
remained  in  the  possession  of  the  defendant  Keeler,  as  receiptor, 
when  Clarissa  Yan  Vorhis,  one  of  the  judgment  debtors  in  the 
court  below,  transferred  an  interest  in  the  same  to  William  Aliger, 
the  other  judgment  debtor. 

On  the  seventh  day  of  January  a  demand  of  the  cattle  was 
made,  and  the  receiptor  refused  to  give  them  up  unless  the  con- 
stable's fees  and  expenses  are  paid,  and  he  was  paid  for  their 
keeping. 

On  the  tenth  day  of  the  same  month  this  action  was  brought  to 
recover  the  value  of  the  cattle,  on  the  ground  that  they  had  been 
converted  by  the  receiptor. 

In  his  answer  the  defendant  claimed  his  right  to  hold  the  prop- 
erty, as  receiptor,  until  the  costs  and  expenses  of  the  taking  and 
keeping  the  cattle  were  paid,  and  claimed  to  recover  the  amount 
thereof  in  this  action. 

Butler  (&  Searl  for  the  appellant. 
A.  M.  Sj>ooner,  for  the  respondent. 

E.  DARWIN  SMITH,  J. : 

The  constable  levied  upon  the  property  in  question  under  a 
valid  execution  issued  upon  a  valid  judgment. 

It  was  his  duty  to  hold  and  take  care  of  the  property  till  the 
judgment  and  his  fees  were  discharged.  He  could,  as  he  did,  com- 
mit the  property  to  the  defendant's  custody  to  hold  as  a  receiptor, 
and  the  latter,  under  the  constable,  acquired  a  valid  lien  upon  the 
property  for  his  just  and  lawful  charges  as  such  receiptor.  The 
payment  of  the  judgment  to  the  plaintiff  or  to  the  sheriff,  upon  the 
judgment  rendered  upon  the  appeal  to  the  County  Court,  did  not 
discharge  the  lien  of  the  defendant,  or  of  the  constable  for  his  fees. 

Judgment  should  have  been  given  upon  this  ground  for  the 
defendant,  and  it  should  now  be  reversed. 

Present  —  MULLIN,  P.  J.,  SMITH  and  TALOOTT,  JJ. 

Judgment  reversed  and  new  trial  granted,  costs  to  abide  erent. 


LE  CLARE  v.  STEWART.  127 

FOTJBTH  DEPARTMENT,  JUNE  TERM,  1876. 


ELIZA  LE  CLARE,  RESPONDENT,  v.  JOHN"  A.  STEWART, 
SUBVIVING  ADMINISTBATOB,  ETC.,  OF  LEWIS  M.  SHERWOOD, 
APPELLANT. 

Witness  —  neact  of  kin  incompetent,  though  catted  to  testify  against  his  interest —  Uode, 


The  testimony  of  one  who  is  next  of  kin  and  interested  in  the  event  of  an 
action,  although  not  a  party  thereto,  as  to  conversations  with  defendant's  intes- 
tate, whether  it  be  favorable  to  or  against  his  interest,  is  inadmissible,  under 
section  399  of  the  Code. 

APPEAL  from  a  judgment  in  favor  of  the  plaintiff,  entered  upon 
the  report  of  a  referee.  On  the  hearing  before  the  referee,  he 
admitted  the  testimony  of  one  Benjamin  Sherwood,  a  son  of 
intestate's  brother,  called  as  a  witness  on  the  part  of  the  plaintiff 
to  testify  to  a  personal  transaction  with  the  intestate.  The  interest 
of  the  witness  was  against  the  plaintiff  as  he  was  entitled,  as  next 
of  kin,  to  a  share  of  the  personal  property,  and  if  the  claim  of  the 
plaintiff  was  defeated  his  share  would  be  increased. 

O.  H.  McMaster,  for  the  appellant. 
William  Rumsey^  for  the  respondent. 

MULLIN,  P.  J. : 

We  cannot  interfere  with  the  referee's  findings  of  fact  in  this 
case.  The  evidence  was  conflicting,  and  although  we  would  have 
been  better  satisfied  had  the  findings  been  the  other  way,  yet  the 
referee  having  the  witnesses  before  him,  and  hence  a  much  better 
opportunity  of  judging  of  their  veracity,  has  credited  the  story  of 
the  plaintiff's  witnesses  and  we  cannot  say  that  he  ought  not  to 
have  done  so. 

We  must  reverse  the  judgment,  however,  by  reason  of  the  admis- 
sion of  the  evidence  of  Benjamin  Sherwood,  one  of  the  next  of 
kin  of  the  defendant's  intestate. 

The  intestate  died  leaving  a  wife,  but  no  father,  mother  or 
children. 


128  SMITH  t>.  REYNOLDS. 

FOURTH  DEPARTMENT,  JUNE  TERM,  1876. 

The  witness  was  his  nephew,  and  hence  one  of  his  next  of  kin 
»nd  entitled  to  share  in  his  estate.  This  action  was  brought  tc 
reach  and  lessen  the  assets  which  would  go  to  the  next  of  kin. 
The  witness  was  therefore  interested  in  the  event  of  the  suit,  and 
Sy  section  399  of  the  Code  such  a  person  is  prohibited  from  being 
examined  as  a  witness  in  such  a  suit. 

At  common  law  this  witness  would  have  been  competent,  being 
called  to  testify  against  his  interest. 

But  the  section  cited  allows  of  no  inquiry  into  the  nature  or 
extent  of  the  interest.  It  says  he  shall  not  be  examined.  To 
admit  the  witness  is  to  override  the  statute. 

The  judgment  must  be  reversed  and  new  trial  granted,  costs  to 
abide  the  event. 

Present  —  MTTLLIN,  P.  J.,  SMITH  and  TALCOTT,  JJ. 

Judgment  reversed  and  new  trial  granted  before  another  referee ; 
costs  to  abide  event. 


MAKY   SMITH,   KESPONDENT,   v.   ELIAS   .REYNOLDS   AXL 
OTHEBS,  APPELLANTS. 

Intoxicating  liquors — furnished  by  bartender  without  knowledge  of,  and  against 
orders  of  employers — Liability  of  employers — chapter  646,  Laws  of  1873. 

The  supplying  of  liquor  to  a  party  who  is  injured  afterwards,  by  reason  thereof, 
although  done  by  the  bartender  without  the  knowledge  or  authority  of  his 
employers,  and  against  their  instructions,  makes  the  employers  liable,  under 
chapter  646  of  the  Laws  of  1873,  for  the  injuries  sustained.* 

APPEAL  from  a  judgment  in  favor  of  the  plaintiffs,  entered  on 
the  verdict  of  a  jury. 

The  defendants  were  the  landlords  and  proprietors  of  a  hotel  at 
Hinsdale,  in  the  county  of  Cattaraugus,  known  as  the  Glade 
House.  Henry  Smith,  the  plaintiff's  husband,  who  had  for  sev- 
eral years  been  in  the  habit  of  frequent  intoxication,  drank  at  the 
defendants'  bar  several  times  on  the  evening  of  July  8,  1874,  and 
ieft  the  hotel  at  a  late  hour  that  evening  in  an  intoxicated  state 
*  See  post,  p.  148,  and  ante,  p.  112. 


SMITH  v.  REYNOLDS.  129 

FotrRTH  DEPARTMENT,  JUNE  TERM,  1876. 

and  started  toward  home.  His  house  was  at  some  distance  from 
the  hotel  and  the  village,  and  between  the  house  and  the  hotel  ran 
the  track  of  the  Buffalo,  New  York  and  Philadelphia  railroad. 
The  next  that  was  seen  of  him  he  was  lying  on  the  track,  about 
six  o'clock  the  next  morning,  in  a  condition  of  stupefaction,  caused 
by  such  intoxication,  and  was  there  struck  by  a  passing  train  and 
received  injuries  from  which  he  died.  Although  his  habits  were 
bad,  he  provided  for  his  family,  consisting  of  his  wife  and  two  chil- 
dren. The  defendants  raised,  among  others,  the  objection  that  the 
action  under  the  act  chapter  646,  Laws  of  1873,  could  not  be  main- 
tained by  the  widow. 

Cary  &  Jewell,  for  the  appellants. 
D.  H.  Boltes,  for  the  respondent. 

MTJLLIN,  P.  J. : 

The  defendants  kept  a  tavern  at  Hinsdale  in  the  county  of  Ca^ 
taraugus. 

They  had  a  license  from  the  proper  authorities  to  sell  liquor  to 
be  drank  on  their  premises.  Their  bartender  sold  liquor  to  the 
plaintiff's  husband,  an  intemperate  man,  in  July,  1874,  by  means 
of  which,  in  whole  or  in  part,  he  became  intoxicated  and  lay  down 
or  fell  down  on  the  track  of  the  Buffalo,  New  York  and  Philadel- 
phia Railroad  along  which  he  passed  on  going  from  the  tavern  to 
his  house.  He  was  struck  by  the  cars  and  was  injured,  and  in  con- 
sequence of  the  injuries  there  and  then  received  he  died,  whereby, 
it  is  claimed,  the  plaintiff  was  deprived  of  support  and  is,  for  that 
reason,  entitled  to  maintain  an  action  against  the  defendants  for 
the  damages  sustained  by  her,  under  section  1  of  chapter  646  of 
the  Laws  of  1873. 

In  Jacknon  v.  Brookins  (5  Hun,  530),  it  was  held,  that  a  wiie 
could  maintain  an  action  for  loss  of  support  resulting  from  the  death 
of  her  husband,  against  the  person  who  sold  him  liquor,  in  conse- 
quence of  drinking  which,  he  became  intoxicated,  and  was  killed. 

No  sufficient  reason  is  suggested  why  we  should  abandon  the 
doctrine  of  that  case  ;  on  the  contrary,  we  are  satisfied  that  the  con- 
struction we  have  given  to  the  statute  is  the  only  one  that,  can  give 
HUN  — VOL.  VIII.  17 


180  SMITH  w.  REYNOLDS. 

FOURTH  DEPARTMENT,  JUNK  TERM,  1876. 

full  effect  to  the  intentions  of  the  legislature,  and  protect  the  com- 
munity against  the  wrongs  done  by  dealers  in  intoxicating  liquors 
in  selling  them  to  persons  known  to  be  intoxicated,  or  in  quantities 
that  they  must  know  will  produce  drunkenness  with  its  train  of 
evils,  not  only  to  the  one  who  drinks  it  but  all  connected  with  him, 
as  well  as  to  the  community  in  which  he  lives. 

The  only  question  I  propose  to  consider  is  the  refusal  of  the 
judge  at  the  Circuit,  to  charge  the  jury  that  if  they  found  from 
the  evidence  that  the  liquor  alleged  to  have  been  delivered  to 
deceased  was  delivered  by  defendants'  bartender  without  the  knowl- 
edge of  the  defendants,  and  after  defendants  had  directed  him  not 
to  sell  or  give  away  any  liquor  to  the  deceased,  then  the  plaintiff 
cannot  recover,  as  requested  by  the  defendants'  counsel. 

No  principle  is  better  settled  in  the  law  relating  to  the  rights 
and  liabilities  of  principal  and  agent,  than  that  the  principal  is  lia- 
ble to  third  persons  for  the  misfeasance,  negligence  and  omissions 
of  the  agent  in  the  business  of  his  agency.  (Story  on  Agency, 
§  308  ;  Paley's  Agency,  294.)  In  the  note  at  the  foot  of  the  page 
cited,  it  is  said:  "  The  general  rule  is  that  the  principal  is  responsi- 
ble, civilly,  for  the  acts  of  his  agent,  but  not  criminally,  uniess 
done  under  his  express  authority." 

In  note  1,  at  the  foot  of  page  295,  it  is  said,  that  "  the  rule  tnat 
the  master  is  liable  for  the  wrongful  acts  of  his  servants,  is  not 
confined  to  domestic  servants,  but  has  a  more  extended  operation. 
All  such  as  act  for,  do  the  work  of,  serve  another,  are,  in  contem- 
plation of  law,  his  servants  and  fall  under  the  rule.  *  *  * 

"It  makes  no  difference  whether  those  servants  are  paid  by  the 
job  or  by  the  year  or  by  the  day;  a  third  person  has  no  concern 
with  the  terms  of  their  private  agreements.  The  loss  to  him  is  the 
same,  let  the  agreements  be  either  way ;  nor  does  it  make  any  dif- 
ference whether  the  person  for  whom  the  work  is  done  be  present 
or  absent.  If  he  expects  to  be  absent,  more  care  should  be  used  in 
making  the  selection.  Nor  is  any  distinction  taken  when  the  work 
is  of  such  a  nature  that  the  owner  cannot  be  expected  to  do  it  him 
self  and  must  necessarily  employ  others  to  do  it.  In  all  these  cases 
the  person  for  whom  the  work  is  done  is  liable,  if  a  third  person  is 
injured." 

In  note  1,  to  page  302  of  the  work,  it  is  said :    "  As  a  general 


ONTHANK  v.  LAKE  SHORE  &  M.  S.  R.  R.  CO.         131 
FOURTH  DEPARTMENT,  JUNE  TERM,  1876. 

rule,  a  master  is  liable  to  answer  in  a  civil  suit  for  the  tortious  or 
wrongful  acts  of  his  servant,  if  those  acts  are  done  in  the  course  of 
his  employment  in  the  master's  service  *  *  *  and  it  makes 
no  difference  that  the  master  did  not  authorize  or  even  know  of  the 
servant's  act  or  neglect,  for  even  if  he  disapproved  of  or  forbade 
it,  he  is  equally  liable  if  the  act  be  done  in  the  course  of  the  ser 
vant's  employment." 

In  view  of  these  authorities,  and  others  which  might  be  cited, 
the  request  to  charge  was  properly  refused. 

The  judgment  must  be  affirmed. 

Present — MULLIN,  P.  J.,  SMITH  and  TALOOTT,  JJ. 
Judgment  affirmed. 


WILLIAM  D.  ONTHANK,  APPELLANT,  v.  THE  LAKE 
SHORE  AND  MICHIGAN  SOUTHERN  RAILROAD 
COMPANY,  RESPONDENT. 

Easement  —  Grant  of  use  qf  water  —  amount  not  defined  —  easement  limited  to  amount 

first  taken. 

A  grant  was  made  to  use  certain  water  and  lay  down  pipes  therefor,  but  the 
size  of  the  pipes  and  the  amount  of  water  to  be  taken  were  not  defined.  Pipes 
were  laid,  and  the  water  that  they  could  supply  used  for  a  number  of  years. 
Held,  that  this  limited  the  extent  of  the  grant,  and  the  grantee  was  liable  for 
damages  occasioned  by  the  diversion  of  a  greater  quantity  of  water  than  origi- 
nally used,  caused  by  taking  up  such  pipes  and  replacing  them  by  larger  ones. 

The  grant  being  of  an  easement,  the  occupation  under  it  must  be  regarded  as 
the  exercise  of  the  right  granted,  applying  the  same  principles  to  easements  of 
water  as  of  land. 

MOTION  by  plaintiff  for  a  new  trial,  made  on  exceptions  ordered 
to  be  heard  in  the  first  instance  at  the  General  Term. 

The  plaintiff  was  the  owner  of  a  farm  of  forty-five  acres,  through 
which  the  defendant's  road  passed.  He  raised  small  fruits,  and 
was  interested  in  the  defendant's  keeping  open  a  station  at  Port- 
land, about  half  a  mile  from  his  residence. 

This  station  had  been  discontinued  two  months,  when  in  1863 
the  plaintiff  and  others  made  an  effort  to  induce  the  company  to 


ONTHANK  v.  LAKE  SHORE  &  M.  S.  R.  R.  CO. 
FOURTH  DEPARTMENT,  JUNE  TERM,  1876. 

reopen  it,  and  for  the  purpose  of  promoting  that  object  executed  to 
the  company  a  grant  to  lay  water  pipes  across  his  land,  and  Samuel 
Brown  also  deeded  them  the  right  to  take  the  water  from  his  spring 
to  their  tanks  at  Portland  station. 

The  company  continued  in  good  faith  on  their  part  to  so  use  the 
water  until  in  1871,  when  they  enlarged  their  reservoir,  put  in 
larger  pipes  and  conducted  nearly  all  the  water  to  Brocton  station, 
which  is  over  a  mile  east  from  Portland  station,  and  there  used  it 
for  their  own  purposes  and  introduced  it  into  private  houses,  and 
discontinued  Portland  station. 

This  was  all  done  against  the  remonstrance  of  the  plaintiff. 

The  water  from  the  spring  formed  what  is  known  as  Deer  Lick 
brook,  which  crossed  plaintiff's  farm,  and  had  always  been  a  durable 
stream.  While  the  first  set  of  pipes  were  in,  and  the  water  was 
only  taken  to  Portland  station,  a  small  quantity  was  used,  and  the 
brook  continued  to  furnish  an  adequate  supply  for  the  plaintiff's  use. 
After  the  new  pipes  were  in,  and  the  water  taken  to  Brocton  for 
private  and  public  purposes,  the  water  ceased  to  flow  in  the  stream, 
and  the  plaintiff  was  deprived  of  its  use. 

The  action  was  brought  to  recover  damages  for  an  alleged  tres- 
pass upon  the  plaintiff's  land,  in  digging  up  the  soil,  laying  down 
pipe,  and  conducting  water  therein  across  said  land  wrongfully. 
Also,  for  diverting  the  water  of  a  spring  on  an  adjoining  farm  into 
such  pipes.  The  court  granted  a  nonsuit. 

H.  C.  Kingsbury,  for  the  appellant. 
Laning  &  Willett,  for  the  respondent. 

MULLIN,  P.  J. : 

In  May,  1863,  Samuel  Brown  owned  a  piece  of  land  in  the  town 
of  Portland,  in  the  county  of  Ohautauqua,  on  which  were  several 
springs  that  discharged  their  water  into  a  small  brook;  that 
after  flowing  over  the  lands  of  divers  persons  emptied  into  a  lake 
near  by. 

The  Buffalo  and  State  Line  Railroad  Company  had  erected,  or 
was  about  to  erect,  a  station  for  its  use  on  the  line  of  its  read 
called  the  Portland  station,  and  in  order  to  supply  its  engines,  etc.. 


ONTHANK  v.  LAKE  SHORE  &  M.  S.  R.  R.  CO.        133 
FOURTH  DEPARTMENT,  JUNE  TERM,  1876. 

with  water  at  said  station  purchased  from  said  Brown  the  right  to 
divert  the  water  of  said  springs  over  his  lands  to  be  taken  to  said 
station  in  pipes,  and  the  same  was  conveyed  to  the  company  by 
quit-claim  deed. 

On  the  day  of  the  date  of  said  last  mentioned  deed  the  railroad 
company  purchased,  for  a  valuable  consideration,  of  the  plaintiff  the 
right  to  lay  pipes  on  his  land  for  the  purpose  of  conveying  the 
water  from  where  the  pipes  on  Brown's  land  terminated  to  the 
station,  and  also  the  right  to  enter  on  said  land  to  repair  said  pipes. 
The  railroad  company  constructed  on  Brown's  land  a  resei ••.  .>*r 
in  which  to  collect  the  water  of  said  springs  and  excavated  a  trench 
on  the  lands  of  said  Brown  and  the  plaintiff,  laid  pipes  therein 
and  conducted  the  water  to  said  station. 

The  defendant  subsequently  acquired  the  right  so  aforesaid 
granted  by  the  plaintiff  and  Brown,  and  is  still  the  rightful  owner 
of  the  same. 

In  1871  the  defendant  discontinued  the  Portland  station  and 
erected  one  called  the  Brocton  station  at  a  point  about  a  mile 
east  of  the  Portland  station,  and  that  station  has  been  used  by  the 
defendant  ever  since. 

The  pipe  which  was  used  from  1863  until  1871  was  about  two 
and  a  quarter  inches  in  diameter,  and  rust  had  accumulated  on  it  to 
such  an  extent  as  to  hinder,  materially,  the  flow  of  water  through  it. 

In  order  to  obtain  a  larger  supply  of  water,  the  defendant  caused 
to  be  taken  up  the  pipe  first  laid  and  in  its  place  put  down  new 
pipe  four  inches  in  diameter,  from  the  reservoir  to  the  land  of 
defendant,  and  from  that  line  to  the  station  it  was  three  inches  in 
diameter.  The  new  pipe  conveyed  considerably  more  water  than 
the  former,  so  much  more  that  in  a  dry  season  it  carried  off  all  the 
water  that  would  otherwise  have  flowed  into  the  brook,  at  which 
plaintiff  was  accustomed  to  water  his  cattle.  The  water,  when 
taken  to  the  station,  was  used  by  the  defendant  for  its  own  purposes 
and  by  others  living  near  the  station. 

For  the  damages  sustained  by  the  plaintiff,  by  entering  on  his 
land  and  diverting  the  water  from  the  brook  and  conducting  it  to 
Brocton  station  this  action  was  brought.  The  defendant  justified 
this  entry  and  diversion  of  the  water  under  the  grants  from  Brown 
and  the  plaintiff. 


134         ONTHANK  v.  LAKE  SHORE  <fc  M.  S.  R.  R.  CO. 
FOURTH  DEPARTMENT,  JUNE  TERM,  1876. 

At  the  close  of  the  plaintiff's  evidence  the  defendant's  counsel 
moved  for  a  nonsuit,  on  the  ground  that  the  defendant  had,  by  virtue 
of  the  said  conveyance,  the  right  to  enter  and  divert  said  water. 
The  court  granted  the  motion  and  nonsuited  the  plaintiff,  and 
directed  the  motion  for  a  new  trial  on  exceptions  to  be  heard  in 
the  first  instance  in  this  court. 

The  grant  of  the  right  to  divert  the  water  from  Brown  does  not 
limit,  in  any  way,  the  quantity  of  water  that  the  grantee  might 
collect  in  and  take  from  the  reservoir ;  and  it  was  the  right  of  the 
grantee  to  take  whatever  quantity  it  deemed  necessary  or  proper 
for  its  use.  When,  however,  the  grantee  constructed  a  reservoir 
and  put  down  a  two  and  a-quarter  inch  pipe,  it  thereby  ascer- 
tained and  limited  the  quantity  it  was  entitled  to  take  by  virtue  of 
the  grant. 

I  have  not  found  any  case  defining  the  extent  of  the  right  of  a 
grantee  in  a  case  like  this ;  but  the  right  of  a  grantee  of  a  right  of 
way,  when  the  deed  does  not  define  it,  has  been  repeatedly  passed 
upon  by  the  courts.  I  am  unable  to  discover  any  reason  why  the 
same  principle  should  not  apply  to  both. 

In  Washburn  on  Easements,  225,  it  is  said,  when  once  the  extent 
of  the  right  is  fixed  by  use  it  may  not  be  changed  except  by  a  suffi- 
ciently long  acquiescence  therein  by  the  parties  in  interest ;  and 
this  the  author  says  applies  to  an  aqueduct  as  well  as  a  way. 

In  Jones  v.  Percival  (5  Pick.,  485)  the  defendant  attempted  to 
justify  a  trespass  by  virtue  of  a  right  of  way  over  the  plaintiff's 
land  in  such  route  as  defendant  should  deem  best,  having  regard 
to  the  owner's  interest. 

The  court  say  that  the  defendant  could  not  have  such  a  right 
over  plaintiff's  land,  because  it  was  altogether  too  indefinite  and 
uncertain.  It  would  authorize  defendant  from  year  to  year,  or 
day  to  day,  to  change  its  course.  Having  been  once  established 
any  deviation  from  it  would  be  a  trespass.  Waehburne,  at  page 
240,  says :  "  The  grant  being  of  an  easement  *ho  occupation  under 
it  must  be  regarded  as  the  exercise  of  the  rigL'  granted." 

If  I  am  right  in  supposing  these  princ^ies  apply  to  the  ease- 
ment insisted  on  by  the  defendant,  it  follows  that  it  is  entitled  only 
to  the  quantity  of  water  that  could  flov  through  the  pipe?  first 
laid  down. 


ONTHANK  v.  LAKE  SHORE  &  M.  S.  R.  R.  CO. 
FOURTH  DEPARTMENT,  JUNE  TERM,  1876. 

The  plaintiff,  as  an  owner  of  the  bed  of  the  brook  below  the 
land  of  Brown,  was  entitled  to  have  all  the  water  of  the  spring 
flow  into  the  brook  and  thence  on  to  the  land  of  the  plaintiff,  not 
granted  to  the  defendant.  The  plaintiff  was  aware  of  the  grant 
by  Brown  of  the  water  and  executed  his  deed  of  the  right  to  lay 
pipes  in  his  land  in  order  to  enable  defendant  to  conduct  the  water 
to  the  station. 

The  plaintiff  has,  therefore,  the  right  to  recover  damages  for  the 
injury  done  him  by  diversion  of  a  greater  quantity  of  water  than 
was  taken  by  the  pipes  first  laid  down.  Whether  the  fact  that 
plaintiff  aided  in  laying  the  new  pipes  should  deprive  him  in  any 
degree  of  the  right  to  insist  upon  the  damages,  to  which  he  would 
otherwise  be  entitled,  can  be  more  properly  decided  on  another 
trial  when  all  the  evidence  on  both  sides  is  given.  Defendant  wag 
not  a  trespasser  in  entering  on  plaintiff's  land  to  take  up  and 
relay  the  pipes.  This  right  is  specifically  granted  by  the  deed. 
It  is  liable  only  for  a  greater  diversion  of  water  than  it  previously 
had. 

I  have  not  said  any  thing  as  to  whether  defendant  could  permit 
parties  living  near  the  depot  to  use  the  water  from  the  reservoir, 
as  it  is  not  material  if  the  plaintiff  shall  recover  judgment  for  the 
water  used  beyond  that  which  was  first  taken  from  the  reservoir. 
If  it  is  compelled  to  pay  for  such  excess,  it  may  apply  it  to  such 
uses  as  it  deems  proper. 

The  nonsuit  must  be  set  aside  and  a  new  trial  granted,  coste  to 
abide  event. 

Present  —  MULLIN,  P.  J.,  SMITH  and  TALOOTT,  JJ 
New  trial  granted,  costs  to  abide  event. 


136  COUGHLIN  v.  N.  Y.  C.  &  H.  R.  R.  R.  CO. 

FOURTH  DEPARTMENT,  JUNE  TERM,  1876. 


PATRICK  COUGHLIN,  APPELLANT,  v.  THE  NEW  YORK 
CENTRAL  AND  HUDSON  RIVER  RAILROAD  COM- 
PANY, RESPONDENT. 

Attorney  and  client — agreement  to  prosecute  action  for  one-half  the  damages  —  Fraud 
ulent  settlement  by  client  —  Relief  of  attorney  —  Evidence  —  defense  not  pleaded  — 
to  controvert  matter  set  up  in  answer  —  admissible. 

Attorneys  agreed  with  a  party  who  had  been  injured  by  a  collision  on  a  railroad,  to 
prosecute  an  action  for  him,  without  expense  to  him,  against  the  company  for  the 
damages  sustained,  in  consideration  of  one-half  of  the  damages  to  be  recovered. 
On  the  service  of  the  summons  in  the  action  on  a  director  of  the  company,  he 
was  informed  that  the  attorneys  had  an  interest  in  the  suit  for  their  services, 
and  the  company  must  not  settle  without  their  consent.  Afterward  the  com- 
pany obtained,  in  consideration  of  $1,000,  a  release  from  the  plaintiff  (without 
the  knowledge  or  consent  of  his  attorneys)  from  all  claim  for  damages. 

Held,  that  it  would  be  unnecessary  and  unjust  to  set  aside  the  release,  as  that 
would  take  from  the  defendant  the  protection  which  it  afforded  it  against  the 
plaintiff;  but  it  was  the  duty  of  the  referee  before  whom  the  cause  was  tried, 
having  found  the  release  to  be  fraudulent,  to  have  held  it  void  as  against  the 
attorneys,  and  complied  with  their  request  and  ascertained  the  damages  sus- 
tained by  the  plaintiff,  and  given  judgment  against  the  defendant  for  one-half 
the  amount  thereof. 

The  defendant  having  insisted  that  the  referee  could  not  try  the  question  whether 
the  release  was  obtained  fraudulently,  as  that  was  not  one  of  the  issues  referred 
to  him: 

Held,  that  as  the  release  was  set  up  as  a  defense  in  the  answer,  and  by  the 
Code  all  allegations  in  the  answer  are  to  be  deemed  denied,  unless  they  consti- 
tute a  counter-claim,  in  which  case  a  reply  must  be  put  in,  the  plaintiff  had  a 
right  to  prove  on  the  trial  any  matter  that  constituted  an  answer  to  the  matter 
set  up  by  the  defendant  as  a  defense,  and  the  evidence  that  the  release  was 
obtained  by  fraud  was  a  perfect  answer  to  that  instrument  as  a  defense,  if  it 
was  established  by  the  evidence. 

APPEAL  from  a  judgment  in  favor  of  the  defendant,  entered  upon 
the  report  of  a  referee. 

Strong  &  Qoodyea/r^  for  the  appellant. 
Lanvng  dk  Willett,  for  the  respondent. 

MULLIN,  P.  J.: 

The  plaintiff,  while  riding  as  a  passenger  on  the  cars  of  the 
defendant,  in  East  Buffalo,  in  January,  1874,  was  injured,  as  it  is 


COUGHLIN  v.  N.  Y.  C.  &  H.  R.  R.  R.  CO.  137 

FOURTH  DEPARTMENT,  JUNE  TERM,  1876. 

alleged,  by  reason  of  the  carelessness  of  the  employes  of  the 
defendant,  which  brought  about  a  collision  between  an  engine  of 
the  defendant  and  the  car  in  which  plaintiff  was  sitting. 

A  day  or  two  after  the  injury  Mr.  Strong,  one  of  the  plaintiff's 
attorneys,  called  on  him  (the  plaintiff),  and  proposed  to  commence 
and  prosecute  to  judgment,  an  action  to  recover  the  damages  sus- 
tained by  plaintiff,  they  (the  attorneys)  paying  all  expenses  and 
disbursements,  in  consideration  of  the  agreement  of  plaintiff  to 
allow  the  attorneys  one-half  of  the  damages  recovered,  and  if 
nothing  was  recovered,  then  nothing  was  to  be  charged  the  plain- 
tiff for  their  services. 

After  the  action  was  commenced  the  plaintiff,  in  consideration  of 
$1,000,  released  the  defendant  from  all  claim  for  damages. 

Several  letters  had  passed  between  the  plaintiff's  attorneys  and 
the  general  superintendent  of  the  defendant,  whose  office  was  in 
Albany,  in  reference  to  a  settlement  of  this  and  several  other 
actions  for  injuries  received  at  the  same  time  plaintiff  received 
hie,  and  in  the  letters  from  the  attorney,  the  superintendent 
was  notified  that  plaintiff's  attorneys  claimed  a  lien  on  the  damages 
obtained  in  the  action,  and  that  the  same  must  be  paid  to  them. 

The  attorney  of  the  defendant,  who  made  the  settlement  and 
obtained  the  release,  did  not  know  that  the  plaintiff's  attorneys 
had  given  to  defendant  notice  of  their  lien  and  forbidden  any  pay- 
ment to  plaintiff,  but  he  did  know  of  the  pending  of  the  action. 

The  plaintiff's  attorneys  were  not  informed  of  the  settlement 
until  some  time  after  the  same  was  made  and  the  release  obtained. 

The  issues  were  referred,  and  on  the  trial  evidence  was  given  on 
the  part  of  the  plaintiff  establishing  a  cause  of  action  against  the 
defendant,  and  the  plaintiff  rested. 

The  defendant,  under  its  second  answer  in  this  action,  offered 
in  evidence  the  release  by  the  plaintiff.  The  plaintiff's  counsel 
objected  to  the  reception  of  the  same  in  evidence,  on  the  grounds : 

1.  That  when  given,  an  action  was  pending  between  plaintiff  and 
defendant,  commenced  January  15th,  1874. 

2.  It  does  not,  on  its  face,  assume  to  be  a  settlement  of  such  a 
guit,  nor  does  it  purport  to  be  a  receipt  for  the  same  damages 
claimed  in  the  suit. 

HUN— VOL.  VIII.         18 


138  COUGHLIN  v.  N.  Y.  C.  &  H.  R.  R.  R.  CO. 

FOURTH  DEPARTMENT,  JUNE  TERM,  1876. 

3.  If  held  to  be  for  the  same  damages,  it  does  not  settle  the  suit 
according  to  law. 

4.  It  is  not  admissible  under  the  plea  of  the  defendant,  and  is 
not  under  seal. 

The  objection  was  overruled,  and  plaintiff's  counsel  excepted. 

The  release  was  then  received  in  evidence. 

The  defendant's  counsel  next  proved  the  negotiations  between 
defendant's  agents  and  the  plaintiff,  which  resulted  in  the  release, 
and  rested. 

The  plaintiff's  counsel  then  proved  and  put  in  evidence  the 
written  agreement  between  the  plaintiff  and  his  attorneys,  by 
which  he  agreed  to  allow  them,  as  compensation  for  their  services 
and  expenses  in  carrying  on  the  suit,  one-half  the  damages. 
It  was  also  proved  on  the  part  of  the  plaintiff,  the  person  who 
served  the  summons  on  a  director  of  the  defendant  living  in  Buf- 
falo, that  at  the  time  of  the  service  he  told  the  director  he  was 
directed  by  the  plaintiff's  attorneys  to  inform  him  that  they  had 
an  interest  in  the  suit  for  their  services,  and  the  defendant  must  not 
settle  without  their  consent. 

The  referee  found  that  before  the  complaint  was  served  the 
plaintiff  executed  and  delivered  a  release  of  any  claim  for  damages 
by  reason  of  the  collision,  in  consideration  of  $1,000  by  the  com- 
pany to  him  paid.  He  found,  as  matters  of  law,  that  the  release 
was  a  complete  defense  to  the  action,  and  ordered  judgment  for  the 
defendant.  The  referee  subsequently  found  that  plaintiff  sustained 
damages  by  reason  of  the  collision  to  the  amount  of  $1,000. 

He  also  finds  the  making  of  the  contract  between  plaintiff  and 
his  attorneys,  and  that  they,  in  good  faith,  went  on  to  fulfill  their 
obligations. 

He  also  finds  that  plaintiff's  attorneys  gave  notice  to  the  agents 
of  the  defendant,  of  their  claim  to  a  share  of  any  sum  recovered 
in  the  action. 

He  also  finds  that  the  settlement  was  fraudulent  and  collusive  as 
against  plaintiff's  attorneys,  and  was  made  without  their  knowledge. 

The  defendant  excepted  to  several  of  the  findings,  and  to  the 
refusal  of  the  referee  to  rule  upon  and  decide  several  propositions 
which  will  be  referred  to  hereafter.  The  plaintiff  appeals. 

It  has  been  repeatedly  held  that  an  attorney  has  no  lien  f  >r  his 


COUGHLIN  v.  N.  Y.  C.  &  H.  R.  R.  R.  CO.  139 

FOURTH  DEPARTMENT,  JUNE  TERM,  1876. 

costs  until  the  recovery,  by  his  client,  of  a  judgment  on  the  verdict. 
(Shank  v.  Shoemaker,  18  N".  Y.,  489 ;  Brown  v.  Comstock,  10  Barb., 
67;  Sweet  v.  Bartlett,  4  Sandf.,661.) 

But  the  court  will  protect  the  attorney  against  a  fraudulent  or 
collusive  settlement  between  his  client  and  the  adverse  party  by 
setting  aside  any  release  that  may  have  been  given,  or  where  the 
right  to  costs  has  not  been  perfected  by  reason  of  there  being  no 
recovery  entitling  the  attorney  to  his  costs,  the  attorney  will  be 
permitted  to  proceed  in  the  action  as  if  no  release  had  been  given 
until  the  costs  are  adjusted.  (Rasquin  v.  Knickerbocker  Stage 
Go.,  12  Abb.  Pr.,  324 ;  ShacUeton  v.  Hart,  12  Abb.  Pr.,  325, 
note.) 

As  a  general  rule,  the  attorney  has  enforced  his  lien  or  protected 
himself  against  collusive  settlements  before  an  actual  lieu  attached, 
by  motion  for  leave  to  proceed  with  the  action,  when  that  is  neces- 
sary, and  the  client  will  not  be  permitted  to  prevent  him. 

In  Martin  v.  Hawks  (15  Johns.,  405),  an  action  was  brought  by 
the  plaintiff's  attorney,  in  the  plaintiff's  name,  for  the  escape  of 
the  defendant,  in  an  action  prosecuted  by  the  plaintiffs  against  one 
Robinson,  against  whom  an  action  for  assault  and  battery  had  been 
brought  and  a  recovery  had  of  six  cents  damages  and  for  seventy- 
seven  dollars  costs.  A  ca.  sa.  had  been  issued  and  the  defendant  in 
that  suit  committed  thereon. 

After  the  commitment,  and  on  the  same  day,  the  plaintiff  released 
the  defendant  Robinson,  and  directed  the  sheriff  to  discharge  him 
from  the  arrest  on  the  ca.  sa.,  as  he  had  received  in  full  the  debt  and 
costs.  The  sheriff'  accordingly  discharged  the  defendant,  and  it 
was  for  this  escape  thus  allowed  the  action  was  brought. 

On  the  trial  the  plaintiff's  counsel  offered  to  prove  that  the  judg- 
ment against  Robinson,  with  the  exception  of  six  cents,  belonged  to 
Jordan,  the  attorney  for  the  plaintiff,  as  the  taxable  costs;  that  the 
deputy  sheriff,  to  whom  the  ca.  sa.  was  delivered,  was  notified  of  the 
ownership  of  the  judgment,  and  was  forbidden  to  pay  to  plaintiff, 
ind  was  required  to  pay  to  the  attorney. 

The  evidence  was  rejected  and  the  plaintiff  nonsuited.  The 
General  Term  granted  a  new  trial,  holding  that  the  attorney  had 
*  lien  upon  the  original  judgment,  which  the  court  would  protect 
and  enforce,  and  as  the  remedy  of  the  attorney  could  only  be 


140  COUQHLIN  v.  N.  Y.  C.  &  H.  R.  R.  R.  CO. 

POTJRTH  DEPARTMENT,  JUXE  TERM,  1876. 

enforced  by  holding  him  entitled  to  prosecute  the  sheriff  for  the 
escape,  he  was  entitled  to  prosecute  the  suit  to  judgment. 

The  difference  between  the  facts  in  this  case  and  that  cited  do  not 
impair  the  attorney's  right  to  relief.  In  this  case  the  attorney  had 
no  lien  for  his  costs;  in  that  he  had  ;  but  the  right  of  the  attorney 
to  be  protected  against  collusive  settlements  that  deprive  him  of  his 
costs  is  just  as  much  entitled  to  protection,  as  it  would  be  against  a 
similar  fraud  to  defeat  his  lien  on  the  verdict  or  judgment.  The 
difference  is  in  the  manner  the  remedy  is  to  be  applied,  rather  than 
in  the  remedy  itself.  . 

In  this  case  the  attorney  requested  of  the  court  permission  to 
make  proof  of  the  cause  of  action  in  favor  of  his  client,  in  order 
that  he  (the  attorney)  might  establish  the  amount  of  compensation 
to  which  he  was  entitled.  In  that  case  the  attorney  was  permitted 
to  prosecute  a  new  and  independent  action  to  obtain  against  a  third 
party  the  amount  of  his  costs  in  such  former  action,  which  he  had 
lost  by  the  fraud  of  his  client  and  the  misconduct  of  the  sheriff. 

If  the  action  for  the  escape  could  be  prosecuted  by  the  attorney, 
I  can  perceive  no  reason  why  the  attorney  may  not  maintain  this 
action.  In  both  the  attorney  had  an  interest  in  the  subject  of  the 
action  for  his  costs,  which  the  court  would  protect  against  fraud u- 
ulent  and  collusive  settlements  and  releases,  whether  made  before 
or  after  verdict  or  judgment.  If  the  fraudulent  release  is  given  or 
the  fraudulent  settlement  made  before  verdict,  and  the  case  is  one 
in  which  the  damages  in  the  case  must  be  ascertained  before  the 
right  of  the  attorney  to  costs  is  determined,  the  relief  he  is  entitled 
to  is  to  prosecute  the  action  to  judgment,  or,  when  that  cannot  be 
done,  to  prosecute  a  new  action  against  whoever  may  be  legally 
liable  to  redress  the  wrong  done  him. 

In  this  case  the  attorney  must  have  the  damages  in  the  action 
assessed,  before  the  costs  to  which  he  is  entitled,  by  virtue  of  the 
contract  between  him  and  his  client,  can  be  ascertained. 

It  is  not  necessary  to  inquire  whether  he  could  maintain  another 
action  against  those  engaged  in  the  fraudulent  attempt  to  deprive 
him  of  his  costs.  This  suit  is  pending  and  another  is  wholly 
unnecessary. 

It  would  be  of  very  little  advantage  to  set  aside  the  release,  that 
would  take  from  the  defendant  the  protection  which  it  affords  it 


COUGHLIN  v.  N.  Y.  C.  &  H.  R.  R.  R.  CO.  141 

FOURTH  DEPARTMENT,  JUNE  TERM,  1876. 

against  the  plaintiff.  This  would  be  both  unnecessary  and  unjust 
The  same  result  is  obtained  by  holding  it  void  as  against  the  attor- 
ney and  leaving  him  to  go  on  in  the  action  as  far  as  is  necessary  to 
the  protection  of  his  right.  The  referee  finds  that  the  settlement 
was  made  in  fraud  of  the  rights  of  the  attorneys.  It  would  be  a 
disgrace  to  the  administration  of  justice  if  the  courts  could  not 
protect  a  party  thus  defrauded  against  the  effect  of  such  fraudulent 
arrangements. 

The  respondent's  counsel  insists  that  the  referee  could  not  try  the 
question  as  to  whether  the  release  was  obtained  fraudulently,  as 
that  was  not  one  of  the  issues  referred  to  him.  The  release  was 
set  up  as  a  defense  in  the  answer.  By  the  Code  the  allegations  in 
the  answer  are  to  be  deemed  denied  unless  they  constitute  a  coun- 
ter-claim, in  which  case  a  reply  must  be  put  in. 

It  is,  therefore,  the  right  of  a  plaintiff  to  prove  on  the  trial  any 
matter  that  constitutes  an  answer  to  the  matter  set  up  by  the 
defendant  as  a  defense  to  the  cause  of  action. 

That  the  release  was  obtained  by  fraud  was  a  perfect  answer  tc 
that  instrument  as  a  defense,  if  it  was  established  by  the  evidence. 
If  the  fraud  is  established  it  will  not  affect  the  rights  of  the  defend- 
ant under  it,  except  so  far  as  necessary  to  protect  the  attorney. 

It  was  the  duty  of  the  referee,  having  found  the  release  to  be 
fraudulent,  to  have  complied  with  the  request  of  the  plaintiff's 
attorneys  and  ascertained  the  damages  sustained  by  the  plaintiff, 
and  to  have  given  judgment  against  the  defendant  for  one-half  the 
amount  thereof. 

The  judgment  must  be  reversed  and  a  new  trial  ordered,  costs  to 
abide  the  event. 

Present  —  MULLIN,  P.  J.,  SMITH  and  TALOOTT,  JJ. 

Judgment  reversed  and  new  trial  granted  before  another  referee, 
costs  to  abide  event. 


142  WAGGONER  v.  MILLINGTON. 

FOURTH  DEPARTMENT,  JUNK  TERM,  1876. 


FRANK  W.  WAGGONER  AND  JAMES  W.  EAGER,  REBPOND- 
ENTB,  v.  HARRIET  E.  MILLINGTON,  APPELLANT. 

Married  woman  —  note  by,  charging  separate  estate,  though  for  debt  of  husband,  valid 
—  blank  place  of  payment,  can  be  fUed  in  by  holder — Practice  —  immaterial  aver- 
ments. 

A  married  woman  executed  and  delivered  the  following  note: 
"  $60.00.  SYRACUSE,  N.  Y.,  February  26,  1875. 

Six  months  after  date  I  promise  to  pay  to  the  order  of  Waggoner  &  Eager 
sixty  dollars  at  .value  received,  with  use.     And  for 

value  received,  I  hereby  agree  that  the  above  sum  shall  be  paid  out  of  my  sep- 
arate estate,  and  make  the  same  a  charge  thereon. 

(Signed)  HARRIET  E.  MILLINGTON." 

Held,  that  the  note  was  not  avoided  by  filling  in  after  the  word  "  at,"  in  a  blank 
left  for  the  place  of  payment,  "  State  Bank  of  Syracuse,  N.  Y.,"  the  leaving 
of  such  blank  giving  implied  authority  to  the  lawful  holder  to  fill  it  up  by 
designating  a  place  of  payment ;  that  the  body  of  the  note  contained  a  suffi- 
cient admission  that  the  defendant  was  possessed  of  a  separate  estate. 

That  an  allegation  in  the  answer  that  the  note  was  given  for  a  prior  indebtedness  of 
her  husband  in  his  own  business  and  for  his  own  benefit,  and  that  she  was 
solicited  to  sign  said  note  for  her  husband  and  did  so  without  any  intention  of 
charging  her  separate  estate  or  knowing  that  she  had  done  so,  following  a  gen- 
eral denial  of  each  and  every  allegation  in  the  complaint  "  except  as  herein- 
after stated  and  admitted,"  had  the  sole  legal  effect  to  admit  the  making  of  the 
note,  and  the  qualification  of  the  admission  was  immaterial. 

That  such  allegation  constituted  no  defense  to  the  note. 

APPEAL  from  a  judgment  entered  upon  the  report  of  a  referee 
in  favor  of  the  plaintiffs  for  $182.05  damages  and  costs.  The 
action  was  upon  a  promissory  note  made  by  the  defendant,  a  mar- 
ried woman,  containing  this  clause:  "And  for  value  received,  I 
hereby  agree  that  the  above  sum  shall  be  paid  out  of  my  separate 
estate,  and  make  the  same  a  charge  thereon,"  and  delivered  to  the 
plaintiffs  to  secure  an  extension  of  time  on  a  judgment  by  them 
against  the  husband  of  the  defendant.  When  delivered,  the  blank 
for  the  place  of  payment  was  not  filled  out,  but  was  caused  to  be 
done  by  the  plaintiffs,  by  inserting  after  the  word  "at,"  "State 
Bank,  Syracuse,  N.  Y.,"  without  the  knowledge  or  express  consent 
of  the  defendant,  but  in  good  faith  and  without  any  actual  fraudu 
lent  intent  on  the  part  of  the  plaintiffs. 


WAGGONER  v.  MILLINGTON.  143 

FOURTH  DEPARTMENT,  JUNE  TERM,  1876. 

The  answer  first  denied  eacli  and  every  allegation  of  the  com- 
plaint "  except  as  hereinafter  stated  and  admitted."  And  as  a  far- 
ther answer  and  third  defense,  alleged  ''that  the  note  mentioned 
and  described  in  the  complaint,  was  not  given  by  her  in  any  busi- 
ness of  her  own,  separate  or  otherwise,  nor  did  it  relate  to,  or  in 
any  way  benefit,  any  estate  of  hers,  separate  or  otherwise,  but  was 
given  for  a  prior  indebtedness  of  Philander  Millington  (her  hus- 
band), "  in  his  own  business  and  for  his  own  benefit,  and  this 
defendant  was  solicited  to  sign  said  note  as  surety  for  the  said 
Philander,  and  did  so  without  any  intention  of  charging  her  sepa- 
rate estate,  or  knowing  that  she  had  done  so." 

W.  Sanders,  for  the  appellant. 
Baldwin  <&  Hahn,  for  the  respondents. 

TAI.COTT,  J. : 

This  is  an  appeal  from  a  judgment  on  the  report  of  a  referee. 
The  action  was  on  a  note  made  by  the  defendant,  a  married 
woman,  to  secure  a  debt  due  from  her  husband.  The  note  con- 
tained a  clause  distinctly  charging  the  separate  estate  of  the 
defendant  with  the  payment  of  the  debt. 

The  referee  correctly  held,  that  the  fact  that  the  defendant 
signed  the  note  was  admitted  by  the  answer.  The  answer  com- 
menced with  a  general  denial  of  each  and  every  allegation  in  the 
complaint  contained,  "except  as  hereinafter  stated  and  admitted." 

The  defendant  for  a  third  defense  alleges  that  the  note  "  was 
given  for  a  prior  indebtedness  of  Philander  Millington  in  his  own 
business  and  for  his  own  benefit,  and  this  defendant  was  solicited 
to  sign  said  note  for  said  Philander,  and  did  so  without  any  inten- 
tion of  charging  her  separate  estate  or  knowing  that  she  had 
done  so." 

The  third  answer  contains  no  defense  to  the  action,  and  its  sole 
office  in  legal  effect  is  to  admit  the  making  of  the  note.  The  gen- 
eral denial  is  qualified  by  the  words  "  except  as  hereinafter  stated 
and  admitted."  There  appears  to  be  no  admission  in  the  answer 
on  any  subject  except  that  the  defendant  made  the  note,  and  the 
qualification  of  the  denial  is  senseless  except  it  be  construed  tc 
refer  to  the  making  of  the  note. 


144  CRAIG  v.  SWINERTON. 

FOURTH  DEPARTMENT,  JUNE  TERM,  1876. 

If  ambiguous,  the  pleading  is  to  be  construed  most  strongly 
against  the  pleader. 

The  note  was  not  avoided  by  the  filling  of  the  blank  after  the 
word  "  at,"  left  for  inserting  the  place  of  payment. 

The  leaving  of  this  blank  gave  implied  authority  to  the  lawful 
holder  to  fill  it  up  by  designating  a  place  of  payment.  (Kitchen 
v.  Place,  41  Barb.,  465 ;  Redlich  v.  Doll,  54  N.  Y.,  234.)  The 
body  of  the  note  contained  a  sufficient  admission  that  the  defend- 
ant was  possessed  of  a  separate  estate.  The  court  itself  corrected 
the  error,  if  any,  in  putting  its  refusal  to  adjourn  the  case  on  the 
ground  that  the  evidence  proposed  to  be  given  by  the  defendant 
was  inadmissible  under  the  pleadings,  by  withdrawing  the  refusal 
to  adjourn  and  adjourning  for  four  days  to  give  defendant  an 
opportunity  to  produce  the  evidence,  and  notifying  the  defendant 
thereof.  At  the  expiration  of  that  time  the  defendant  should 
have  produced  the  evidence  or  shown  cause  for  a  further  adjourn- 
ment. 

The  judgment  must  be  affirmed. 

Present  —  MULLIN,  P.  J.,  SMITH  and  TALOOTT,  JJ. 
Judgment  affirmed. 


HENRY  H.  CRAIG  AND  OTHERS,  RESPONDENTS,  v.  JOHN 
M.  SWINERTON,  IMPLEADED  WITH  HENRY  J.ANES, 
APPELLANT.* 

Mechanic? B  lien  —  chop.  489,  Laws  of  1873  —  materials  furnished  to  vendee  in  pos- 
tession  under  executory  contract  —  Oonsent —  Title  of  owner  of  fee  not  affected  — 
when. 

Chapter  489,  Laws  of  1873,  does  not  authorize  the  creation  of  a  lien  as  against  the 
owner  of  the  legal  title  to  property,  in  regard  to  which  there  is  an  outstanding 
executory  contract  of  sale  with  the  vendee  in,  and  entitled  to  the  possession  of 
the  land,  for  materials  and  labor  furnished  to  the  vendee  on  a  building  contract 
made  with  him,  or  for  his  own  benefit,  unless  such  labor  or  supplies  are  fur 
nished  with  the  express  consent  of  the  owner  of  the  fee  of  the  land. 

*  See  Wheeler  v.  Scofield,  6  Hun,  655.  —  [REP. 


CEAIG  v.  SWINERTON.  145 

FOURTH  DEPARTMENT,  JUNE  TERM,  1876. 

APPEAL  by  the  defendant  Swinerton  from  a  judgment  in  favor 
of  the  plaintiff,  entered  upon  the  report  of  a  referee,  and  from  an 
order  confirming  the  report  and  an  order  denying  a  motion  for  a 
new  trial.  The  action  was  brought  in  the  Monroe  County  Court  for 
the  foreclosure  of  a  mechanic's  lieu  under  chapter  489,  Laws  of 
1873,  and  was  referred.  The  notice  of  lien  was  filed  December 
10,  1873,  and  alleged  a  claim  against  Henry  Janes  for  materials 
"  furnished  to  and  used  by  said  Henry  Janes,  in  pursuance  of  an 
agreement  with  him,"  and  that  the  same  were  used  in  erecting 
"  three  dwelling-houses  and  appurtenances  on  Jennings  street,"  in 
Irondequoit,  and  that  sixty  days  have  not  elapsed  since  the  said 
materials  were  furnished.  That  Janes  "  has  the  equitable  title  and 
one  John  M.  Swinerton  the  legal  title  to  said  buildings,"  etc.  The 
notice  of  foreclosure,  after  setting  forth  the  claim  for  materials, 
contained  this  clause  :  "  Which  materials  were  furnished  to  and 
applied  by  the  said  Janes  in  erecting  the  three  buildings  now 
owned  by  you,  said  Swinertou,"  and  was  the  only  allegation  relat- 
ing to  Swinerton. 

Quincy  Van  Vbor/iis,  for  the  appellant,  Swinerton. 
De  L.  Crittenden,  for  the  respondent. 

TALCOTT,  J. : 

This  is  an  action  commenced  in  the  County  Court  of  Monroe 
county  to  foreclose  a  mechanic's  lien  and  comes  here  on  an  appeal 
by  John  M.  Swinerton  from  a  judgment  rendered  on  the  report  of 
a  referee,  and  from  an  order  confirming  the  same  and  from  an  order 
denying  a  new  trial  in  the  action.  The  proceeding  was  commenced 
under  chapter  489  of  the  Laws  of  1873.  The  statute  provides  (§  1). 
that  whoever  shall  perform  any  labor  in  erecting,  altering  or 
repairing  any  house,  or  who  shall  furnish  any  materials  therefor 
with  the  consent  of  the  owner,  being  such  owner  as  is  in  this  sec- 
tion hereinafter  described,  shall,  on  filing  a  certain  notice,  have  a 
lien  for  the  value  of  such  labor  and  materials,  and  upon  the  lot  on 
which  the  same  shall  stand,  to  the  extent  of  the  right,  title  and 
interest  of  the  owner  of  the  property,  whether  owner  in  fee  or  ot 
a  less  ostate,  or  whether  lessee  for  a  term  of  years  thereafter,  01 
Hux— VOL.  VIII.  19 


146  CRAIG  t».  SWINERTON. 

FOUBTH  DEPARTMENT,  JUNE  TERM,  1876. 

vendee  in  possession  under  a  contract  existing  at  the  time  of  the 
filing  of  said  notice,  or  any  right,  title  or  interest  in  real  estate 
Against  which  an  execution  at  law  may  now  be  issued.  In  this 
case  one  Strawbridge  was  the  builder,  having  contracted  with  one 
Henry  Janes  to  erect  three  houses  on  some  land  in  the  outskirts 
of  Rochester,  of  which  Janes  had  the  possession  and  control  as  a 
vendee  under  an  executory  contract  of  sale.  The  claimants  are 
lumber  dealers  who  furnished  certain  lumber,  used  in  the  erection 
of  the  said  houses,  upon  the  order  and  credit  of  Janes.  It  is  claimed 
that  the  defendant  John  M.  Swinertou  held  the  legal  title  to  the 
land  in  question  at  the  time  of  the  filing  of  the  notice  of  claim  in 
the  county  clerk's  office.  The  notice,  upon  the  filing  of  which  in 
the  county  clerk's  office  it  is  claimed  that  the  lien  was  created, 
alleges  that  the  lumber  was  furnished  to  Henry  Janes  and  in  pur- 
suance of  an  agreement  with  him,  and  that  Henry  Janes  has  the 
equitable  title  and  "  one  John  M.  Swinerton,  of  the  city,  county 
and  State  aforesaid,  has  the  legal  title  to  said  buildings,  appurte- 
nances and  lots,"  but  contains  no  intimation  that  Swinerton  had 
ever  consented  to  the  erection  of  the  said  buildings,  or  the  furnish- 
ing of  the  said  lumber  by  the  claimants,  or  that  any  claim  was 
made  that  the  interest  of  Swinerton  in  the  land  was  in  any  way 
liable,  or  claimed  to  be  liable,  for  the  amount  due  from  Janes  to  the 
claimants,  or  any  part  thereof.  The  notice  served  at  the  com- 
mencement of  the  action  in  the  County  Court  under  section  6,  and 
which,  though  also  called  a  notice,  answers  substantially  to  the 
ordinary  summons  and  complaint  in  an  action,  also  sets  up  the 
claim  as  against  Janes,  whom  it  styled  "  former  vendee  in  posses 
sion,"  with  whom,  it  alleges,  that  an  agreement  for  the  erection  of 
the  buildings  and  appurtenances  was  made  with  Leonard  Straw 
bridge,  "  who  was  contractor  therefor."  This  notice,  or  complaint, 
also  contains  a  statement  that  the  materials  for  which  the  claim 
ants  claim  were  furnished  to  and  applied  by  said  Henry  Janes 
"  in  erecting  the  three  buildings  now  owned  by  you,  said  Swiner- 
ton, situate,"  etc.  This  notice,  or  complaint,  also  wholly  omits  to 
aver  any  facts  which  tend  to  show  that  the  interest  of  Swinerton 
in  the  land  was  in  any  way  liable  or  subject  to  the  lien  of  the 
plaintiffs  by  reason  of  his  consent  to  the  furnishing  of  the  lumber, 
or  for  any  other  cause.  The  sixth  section  of  the  act  requires  that 


CRAIG  v.  SWINERTOK  147 

FOURTH  DEPARTMENT,  JUNE  TERM,  1876. 

the  notice,  by  which  the  action  is  commenced,  should  contain  "  a 
statement  of  the  facts  constituting  the  claim  and  the  amount 
thereof,  and  any  other  facts  material  to  the  case."  We  think  the 
notice  in  the  action  commenced  in  court  at  all  events,  ought  to  con- 
tain some  allegations,  if  not  expressly  asserting,  certainly  from 
which  it  is  reasonably  to  be  inferred,  that  a  lien  is  claimed  against 
the  interest  of  snch  as  are  intended  to  be  made  parties  defendant 
in  the  action.  Xo  such  allegation  is  contained  in  either  of  the 
notices  in  this  case,  and  nothing  from  which  it  can  be  inferred  that 
the  claimants  seek  to  establish  any  lien  against  the  vendor's  interest, 
which  it  is  claimed  was  vested  in  Swinerton,  or  that  the  claimants 
claim  that  any  such  state  of  facts  exist  as  would  authorize  the  asser- 
tion of  a  lien  against  him.  But,  however  this  may  be,  it  may  be 
safely  asserted  that  the  legislature  did  not  intend  to  authorize  the 
creation  of  a  lien  as  against  the  owner  of  the  legal  title  to  property, 
in  regard  to  which  there  was  an  outstanding  executory  contract  of 
sale  witli  the  vendee  in,  and  entitled  to  the  possession  of  the  land, 
for  materials  and  labor  furnished  to  the  vendee  on  a  building  con- 
tract made  with  him,  or  for  his  own  benefit,  unless  the  labor  or 
supplies  were  furnished  with  the  express  consent  of  the  owner  of 
the  fee  of  the  land.  This  condition  precedent  is  required  in  so 
many  words  by  the  statute,  and  is  not  so  obscured  by  the  verbiage 
of  the  act  but  that  it  is  manifest  that  it  was  not  intended  to  create, 
as  against  the  general  owner,  a  lien  by  which  his  property  might 
be  confiscated  by  the  acts  and  indebtedness  of  another  party,  and 
wholly  without  the  consent  or  interference  of  the  general  owner. 
In  this  case  not  only  are  the  two  notices  referred  to  destitute  of 
any  allegations  or  suggestions  of  any  facts  whereby  the  claimants 
would  be  authorized  to  create  a  lien  against  the  interest  of  the 
general  owner,  but  it  is  nowhere  asserted  that  the  claimants  make 
any  claim  against  the  interest  of  Swinerton.  Moreover,  the  referee 
does  not,  in  his  report,  find  that  Swinerton  had  any  thing  to  do 
with  the  building  contract,  or  the  furnishing  of  the  materials,  or 
that  the  materials  were  furnished  with  the  consent  of  Swinerton. 
We  have  carefully  examined  the  evidence  given  before  the  referee 
and  fail  to  find  therein  the  slightest  evidence  that  Swinerton  con- 
sented to  the  erection  of  the  buildings,  or  the  famishing  of  mate- 
rials by  the  plaintiff,  so  that  we  have  a  judgment  by  which  the 


148  MEAD  v.  STKATTON. 

FOURTH  DEPARTMENT,  JDNE  TERM,  1876. 

property  of  Swinerton  is  ordered  to  be  sold  in  consequence  of  the 
acts  and  defaults  of  another  party,  not  his  agent,  and  without  anv. 
averment  or  proof  by  which,  under  the  act,  Swinerton's  property 
was  in  any  manner  pledged  or  liable  to  be  sold.  It  would  be  very 
extraordinary  if  such  a  judgment  could  be  upheld. 

The  order  confirming  the  report  and  the  order  denying  a  new 
trial  and  the  judgment  in  the  proceeding  are  reversed,  as  against 
Swiuerton,  and  a  new  trial  ordered  before  another  referee,  costs  to 
»bide  event  as  to  said  Jno.  M.  Swinerton,  defendant. 

Present  —  MULLIN,  P.  J.,  SMITH  and  TALOOTT,  J J. 
Ordered  accordingly. 


ISABELLA  MEAD,  RESPONDENT,  v.  ISAAC  J.  STRATTON 
AND  MARGARET  M.  STRATTON",  APPELLANTS. 

Civil  damage  act  —  chapter  646,  Laws  of  1873  —  Recovery  of  damages  against  owner 
— permission  or  knowledge  of  owner  must  be  proved,  not  presumed  or  inferred. 

A  recovery  can  only  be  had  against  the  owner  of  a  building  where  intoxicating 
liquors  are  sold,  under  the  clause  of  chapter  646,  Laws  of  1873,  which  pro- 
vides that  "  any  person  or  persons  owning  or  renting  or  permitting  the  occu- 
pation of  any  building  or  premises,  and  having  knowledge  that  intoxicating 
liquors  are  to  be  sold  therein,  shall  be  liable  severally  or  jointly  with  the  per- 
son or  persons  selling  or  giving  intoxicating  liquors  aforesaid,  for  all  damages 
sustained,  and  for  exemplary  damages,"  upon  clear  and  satisfactory  proof 
establishing  the  permission  to  occupy,  with  knowledge  that  intoxicating 
liquors  are  to  be  sold  therein;  and  neither  the  permission  or  the  knowledge 
can  be  presumed  or  inferred. 

APPEAL  from  a  judgment  entered  on  the  verdict  of  a  jury  in 
favor  of  the  plaintiff  and  against  the  defendants  for  $1,151  damages 
and  costs. 

This  action  was  brought  by  the  plaintiff,  who  was  the  wife  of 
Charles  Mead,  against  the  defendants,  to  recover  damages  sustained 
by  the  plaintiff  in  her  means  of  support  by  the  death  of  said 
Charles  Mead  while  intoxicated,  and  in  consequence  of  such  intoxi- 
cation, produced  by  liquor  sold  to  said  Charles  Mead  by  the  defend- 
ant Isaac  J.  Stratton.  The  defendant  Margaret  M.  Stratton  is  the 


MEAD  v.  STRATTON.  149 

FOURTH  DEPARTMENT,  JUNE  TERM,  1876. 

wife  of  Isaac  J.  Stratton,  and  owned  and  lived  with  him  upon  the 
premises  known  as  the  Globe  Hotel  at  Geneseo,  premises  upon 
which  Isaac  J.  Stratton  kept  hotel  and  sold  intoxicating  liquors. 
There  was  no  evidence  given  on  the  trial  which  proved  or  tended 
to  prove  that  she  had  any  knowledge  that  intoxicating  liquors  were 
sold  on  the  premises  or  were  to  be  sold  when  her  husband  took 
possession,  except  that  she  lived  with  him. 

It  appeared  that  Charles  Mead  was  an  industrious  laboring  man, 
thirty-seven  years  of  age,  residing  at  York,  about  five  miles  from 
Geneseo ;  that  after  working  all  day  on  Saturday,  August  8,  1874, 
he  left  home  in  the  evening  with  one  McGir  and  drove  to  Geneseo 
with  horse  and  buggy ;  attended  to  some  matters  of  business ;  drank 
intoxicating  liquors  several  times  at  defendant's  hotel ;  at  one  time 
Stratton  handed  him  the  bottle ;  became  beastly  drunk,  so  that  he 
was  helped  into  his  buggy  upon  their  starting  for  home.  In  going 
down  the  hill  from  Geneseo,  Mead  fell  over  on  the  dash-board 
twice,  and  was  helped  up  on  the  seat  by  McGir,  who  was  driving, 
and  held  there  till  they  got  down  the  hill.  After  getting  part  way 
across  the  flats  on  their  way  home,  McGir  had  occasion  to  get  out 
of  the  buggy,  when  he  handed  Mead  the  lines.  The  horse  started 
along  upon  the  roacl,  and  that  was  the  last  seen  of  Mead  till  he  was 
found  in  front  of  his  residence,  hanging  out  of  the  buggy,  with  his 
head  down  against  the  spokes  of  the  fore  wheel,  his  left  hand  and 
arm  on  the  ground,  with  his  knee  caught  firmly  under  the  foot  rest 
of  the  buggy,  killed  by  the  speed  of  the  horse  and  the  action  of 
the  wheel. 

The  plaintiff  was  entirely  dependent  upon  her  husband  for  her 
means  of  support,  having  no  property,  and  he  was  industrious  and 
a  good  provider  for  his  family.  They  had  three  daughters,  aged 
respectively  thirteen,  ten  and  four  years,  a  boy  eight  years  old,  and 
another  daughter  born  after  the  father's  death  and  before  the  trial. 

S.  Hulbardy  for  the  appellants. 
</.  B.  Adams,  for  the  respondent. 

TALCOTT,  J. : 

This  is  an  action  brought  under  the  act  of  1873,  known  as  tne 
r»,ivil  damage  act.  The  action  is  founded  on  the  alleged  injury  to 


150  MEAD  v.  STRATTON. 

FOUKTH  DEPARTMENT,  JUNE  TERM,  1876. 

the  means  of  support  of  the  plaintiff,  whose  husband  fell  from  his 
wagon  and  was  killed,  as  the  plaintiff  alleges,  in  consequence  of 
intoxication,  to  which,  intoxicating  liquor  sold  to  him  by  the  defend- 
ant Isaac,  is  alleged  to  have  contributed. 

The  defendant  Margaret  is  included  as  a  defendant  in  the  action 
upon  the  allegation  contained  in  the  complaint,  that  she  owns  the 
'•  Globe  Hotel  "  where  the  liquor  is  alleged  to  have  been  sold,  and 
that  "  she  rents  the  same  to  the  said  Isaac  J.  Strattou,  or  permits 
the  same  to  be  occupied  as  such  hotel,"  and  had  knowledge  that 
intoxicating  liquors  were,  and  had  been,  and  were  to  be  sold  in  the 
said  building  so  owned  by  her  and  occupied  by  said  Isaac  J. 
Stratton.  On  the  trial  the  only  proof  offered  to  sustain  the  action 
against  Mrs.  Stratton,  consisted  of  admissions  made  by  the  counsel 
for  the  defendants,  that  the  title  of  the  hotel  in  question  was  vested 
in  the  said  Margaret ;  that  she  was  the  wife  of  the  defendant  Isaac 
and  lived  with  her  husband  at  the  hotel,  together  with  evidence 
tending  to  show  that  liquor  was  usually  sold  at  the  bar  of  the  hotel. 
The  act  makes  "any  person  owning  or  renting,  or  permitting  the 
occupation  of  any  building  or  premises  and  having  knowledge  that 
intoxicating  liquors  are  to  be  sold  therein,"  liable,  severally  or 
jointly,  with  the  person  who  sells,  for  all  damages  sustained  and  for 
exemplary  damages.  It  cannot  be  supposed  that  the  legislature 
intended  to  inflict  the  severe  consequences  prescribed  by  the  act, 
unless  the  owner,  in  some  manner,  had  authorized  the  occupation 
for  such  purpose,  in  the  language  of  the  act  "  having  knowledge 
that  intoxicating  liquors  are  to  be  sold  therein." 

The  permission  to  occupy,  with  knowledge  that  intoxicating 
liquors  are  to  be  sold  therein  constitutes  the  basis  of  the  liability 
imposed  by  the  act.  Neither  the  permission  nor  the  knowledge 
are  to  be  presumed  or  inferred,  but  should  be  established  by  clear 
and  satisfactory  proof.  It  may  be  doubtful  whether,  considering 
the  relations  between  the  parties,  the  occupation  by  the  husband 
of  the  premises  belonging  to  his  wife  where  he  and  she  reside,  is 
such  a  permission  to  occupy  as  would  make  her  liable  under  the 
statute.  However  that  may  be,  it  is  clear  that  she  must  have 
knowledge  "  that  intoxicating  liquors  are  to  be  sold  therein."  Of 
this  there  was  no  proof,  and  it  cannot  be  inferred  from  the  mere 
fact  that  she  lived  at  the  hotel  with  her  husband.  She  is  not 


MEAD  v.  STRATTON.  151 

FOURTH  DEPARTMENT,  JUNE  TERM,  1876. 

shown  ever  to  have  witnessed  a  sale,  or  ever  to  have  been  present 
in  the  bar-room  where  the  sales  were  made,  ever  to  have  given  any 
consent  that  such  sales  should  be  made,  or  to  have  been  informed 
that  they  were  in  fact  made,  or  of  any  circumstance  tending  to 
induce  any  such  belief. 

It  may  very  well  be  supposed  that  though  the  wife  of  the  defend- 
ant Isaac,  and  living  with  him  in  the  hotel,  her  avocation  occupied 
her  in  a  different  and  perhaps  distant  part  of  the  premises.  The 
knowledge  that  her  husband  was  keeping  a  hotel  on  the  premises 
did  not,  necessarily,  convey  to  her  the  information  that  he  was 
engaged  in  selling  intoxicating  liquors  there  ;  and  the  sale  of  such 
liquors  may  not  only  have  been  without  her  consent,  but  against 
her  remonstrance.  We  do  not  think  the  evidence  offered  on  the 
subject  was  sufficient  to  charge  the  defendant  Margaret  with  the 
liability  for  the  damages  which  resulted  from  the  intoxication  of 
the  deceased,  if  any  within  the  meaning  of  the  statute. 

This  objection  was  distinctly  taken  by  way  of  a  motion  for  a  dis- 
missal of  the  complaint  as  to  the  defendant  Margaret,  which 
motion  being  denied,  an  exception  was  duly  taken.  We  consider 
this  ruling  erroneous,  and  for  that  reason  a  new  trial  must  be  ordered. 

The  important  position  advanced  by  the  counsel  for  the  plaintiff 
as  to  the  right  to  maintain  the  action  at  all  under  such  circum- 
stances, and  which  has  been  the  occasion  of  such  diverse  judicial 
opinion,  we  do  not  touch,  because  the  General  Term  in  this  depart- 
ment is  understood  to  be  committed  on  the  subject,  and  in  the  hope 
that  before  this  cause  shall  be  tried  again,  we  shall  have  some  con- 
struction of  the  vague  and  uncertain  statute  on  which  the  action  is 
founded,  and  that  it  will  receive  an  exposition  at  the  hands  of  the 
court  of  last  resort. 

Judgment  reversed  and  new  trial  ordered,  costs  to  abide  the  event. 

Present — MULLIN,  P.  J.,  SMITH  and  TALOOTT,  JJ. 
New  trial  ordered,  costs  to  abide  the  event. 

As  to  constitutionality  of  civil  damage  act,  see  Baker  v.  Pope  (2  Hun,  556). 
That  damages  resulting  from  death  of  intoxicated  person  cannot  be  recovered 
under,  see  Hayes  v.  Phelan  (4  Hun,  783);  contra,  Jackson  v.  Brookins(5  Hun,  580). 
That  landlord  is  liable  for  liquor  supplied  by  the  bartender  contrary  to  hia 
instructions,  Smith  v.  Reynolds  (ante,  p.  128).  That  joint  action  against  land- 
iord  and  tenant  will  lie,  Bertholfv.  O'Reilly  (ante,  p.  16).  As  to  exemplary  damages, 
uud  distribution  of  damages  among  parties  entitled  to  sue,  see  Franklin  v. 
p.  112). —  [REP. 


152  TOWN  OF  CHAUTAUQUA  v.  GIFFOKD. 

FOURTH  DEPARTMENT,  JUNE  TERM,  1876. 


TOWN  OF  CHAUTAUQUA,  RESPONDENT,  v.  GEORGE  W. 
GIFFORD  AND  WILLIAM  P.  WHITE,  APPELLANTS. 

Town,  moneys —  Action  to  recover  rmist  be  brought  by  supervisor —  1  R.  8.,  356,  §  1  — 
2  R.  8.,  473,  §§  92,  98—  Code,  118. 

The  collector  of  a  town  deposited  with  bankers  moneys  collected  by  him  for  taxes. 

Subsequently  the  supervisor  agreed  with  the  bankers  that  they  could  retain  the 

moneys  until  wanted.    Afterward,  on  demand  by  him  therefor,  payment  was 

refused. 
Held,  that  an  action  to  recover  the  same  could  not  be  maintained  in  the  name  of 

the  town,  but  must  be  brought  by  its  supervisor. 

MOTION  for  a  new  trial,  founded  upon  exceptions  taken  to  the 
decisions  and  rulings  of  the  court  upon  a  trial  by  jury,  directed  to 
be  heard  in  the  first  instance  at  the  General  Term. 

In  the  year  1873  William  Gifford,  as  collector  of  the  town  of 
Chautauqua,  collected  and  deposited  with  the  defendants,  who  were 
bankers,  the  sum  of  $3,500,  which  had  been  raised  to  pay  the  interest 
to  become  due  on  its  bonds  in  August  following.  The  defendants 
received  the  money  with  full  knowledge  that  the  same  was  the 
money  of  said  town  raised  by  tax  to  pay  the  interest  on  its  bonds, 
to  become  due  and  payable  the  following  August.  In  March,  1873, 
and  while  said  moneys  so  remained  on  deposit  with  the  defendants, 
John  Birdsall  was  first  elected  supervisor  of  said  town  and  duly 
qualified  as  such.  After  his  election  the  defendants  requested 
Birdsall  to  leave  said  money  on  deposit  with  them,  as  aforesaid, 
and  that  they  would  allow  interest  on  the  same  until  the  same  was 
required  to  meet  the  interest  upon  said  bonds  to  become  due  in 
August,  to  which  request  Birdsall  assented  ;  and  it  was  then  agreed 
with  him  that  defendants  should  so  hold  and  retain  said  money. 
In  July  following,  the  said  Birdsall,  as  supervisor  of  said  town, 
demanded  the  money  aforesaid  of  the  said  defendants,  for  the  pur- 
poses aforesaid.  The  defendants  refused  to  pay  the  same,  except 
the  sum  of  $1,500,  and  suit  was  brought  in  the  name  of  the  town 
therefor. 

After  the  plaintiff  rested  his  case,  the  counsel  for  the  defendants 


TOWN  OF  CHAUTAUQUA  u.  GIFFORD.  153 

FOURTH  DEPARTMENT,  JUNE  TERM,  1876. 

moved  to  nonsuit  the  plaintiff,  upon  the  ground  that  the  plaintiff 
had  proven  a  contract  as  the  basis  of  its  action,  made  between  John 
Birdsall,  its  former  supervisor,  and  the  defendants,  and  that  an  action 
to  enforce  the  same  could  only  be  brought  by  and  in  the  name  of  the 
supervisor  of  the  town  ;  which  motion  was  denied,  and  the  defend- 
ants excepted.  And  the  defendants  further  moved  the  court  for  a 
nonsuit,  on  the  ground  that  the  action  was  improperly  brought  and 
could  not  be  maintained  by  the  town  in  its  corporate  capacity,  which 
motion  the  court  denied,  and  the  defendants  excepted.  The  jury 
rendered  their  verdict  for  the  plaintiff  for  the  sum  of  $2,325.4:4:,  and 
thereupon  the  justice  directed  the  said  exceptions  to  be  heard  in  the 
first  instance  at  the  General  Term,  and  the  judgment  in  the  mean 
time  to  be  suspended. 

A.  A.  Van  Dusen,  for  the  appellants. 
Morris  &  Russell^  for  the  respondent. 

TALCOTT,  J. : 

This  comes  to  this  court  on  exceptions  taken  at  the  Ohautauqua 
Circuit  and  directed  to  be  heard  at  the  General  Term  in  the  first 
instance.  The  action  was  brought  to  enforce  a  supposed  liability 
of  the  defendants,  who  are  bankers,  for  certain  moneys  claimed  to 
have  been  received  by  the  supervisor  of  the  town  from  the  col- 
lector of  taxes  belonging  to  the  town  and  deposited  or  left  with 
the  defendants  in  1873. 

The  main  question  in  the  case  is,  whether  the  action  can  be 
maintained  in  the  name  of  the  town  as  plaintiff,  or  must  be  brought 
by  the  present  supervisor.  It  was  held  in  Hathaway  as  Supervisor 
of  the  Town  of  Solon  v.  The  Town  of  Homer  (5  Lans.,  267),  that 
where  there  is  a  liability  to  the  town  for  moneys,  it  can  only  be 
enforced  by  an  action  in  the  name  of  the  supervisor.  This  was 
held  to  be  the  effect  of  certain  provisions  of  the  Revised  Statutes, 
viz.:  1.  Revised  Statutes,  356,  section  1,  which  provides  that 
when  any  controversy  or  cause  of  action  shall  exist  between 
towns  of  this  State  or  between  any  town  and  an  individual 
or  corporation,  proceedings  shall  be  had  as  in  suits  of  a  simi- 
lar kind  between  individuals;  and  section  2  of  the  same  stat- 
HUN— VOL.  VIII.  20 


154  TOWN  OF  CHAUTAUQUA  v.  GIFFORD. 

FOURTH  DEPARTMENT,  JUNE  TERM,  1876. 

ute,  which  declares  that  in  all  such  suits  and  proceedings  the  town 
shall  sue  or  be  sued  by  its  name,  except  when  town  officers  shall  be 
authorized  by  law  to  sue  in  their  name  of  office  for  the  benefit  of 
the  town. 

Also,  2  Revised  Statutes,  473,  sections  92  and  93,  which 
authorize,  among  other  things,  actions  to  be  brought  in  the 
names  of  town  supervisors  upon  any  contract,  lawfully  made 
with  them  or  their  predecessors,  to  enforce  any  liability  or 
any  duty  enjoined  by  law  to  such  officers  or  the  body  which 
they  represent.  The  case  of  Hathaway  v.  The  Town  of 
Homer  was  reversed  by  the  Commission  of  Appeals  (54  N. 
Y.,  655),  but  upon  other  points,  and  no  intimation  was  made 
that  the  opinion  of  the  Supreme  Court  was  erroneous  in  holding 
that  the  action  must  be  brought  in  the  name  of  the  supervisor  of 
the  town. 

The  same  point  was  also  held  at  the  General  Term  of  the  third 
department  in  January,  1873,  in  the  case  of  The  Town  of  Lewis  v. 
Marshall^  where  the  opinion  of  the  court  was  delivered  by  Justice 
MILLER,  who  states  that  "  the  action  was  improperly  brought  in  the 
name  of  the  town  of  Lewis,  and  if  maintainable  at  all,  it  must  be  in 
the  name  of  the  supervisor  of  the  town,  who  alone  is  authorized  to 
sue  in  such  a  case,"  and  this  was  the  sole  ground  of  the  decision. 
On  appeal  to  the  Court  of  Appeals  the  decision  of  the  General 
Term  was  affirmed,  and  the  opinion  of  MILLER,  J.,  in  the  court 
below  adopted.  (56  N".  Y.,  663.)  The  doctrine  of  the  case  of 
The  Town  of  Lewis  v.  Marshall  was  as  to  this  point  again  asserted 
by  the  Court  of  Appeals,  in  The  Town  of  O-uilford  v.  Cooley  (58 
N.  Y.,  121).  The  cases  above  referred  to  were  all  actions  brought 
since  the  Code  of  Procedure  went  into  effect,  and  since  the  pro- 
vision that  every  action  must  be  brought  in  the  name  of  the  real 
party  in  interest,  except  as  otherwise  provided  in  section  113. 
Section  113  provides  that  a  person  expressly  authorized  by  statute 
may  sue  without  joining  with  him  the  person  for  whose  benefit  the 
suit  is  prosecuted.  If  the  views  herein  expressed  are  correct,  they 
are  fatal  to  the  maintenance  of  the  action  in  its  present  form ;  so 
that  it  is  not  necessary  to  consider  the  point  that  the  suit  was 
brought  without  due  authority,  nor  of  any  avail  to  order  a  new 


MCDONNELL  v.  CULVER.  155 

FOUKTH  DEPARTMENT,  JUNK  TERM,  1876. 

trial.     The  complaint  should  have  been  dismissed,  and  such  order 
should  be  made  by  this  court. 

New  trial  denied,  and  complaint  dismissed  with  costs. 

Present  —  MULLIN,  P.  J.,  SMITH  and  TALOOTT,  JJ. 
Complaint  dismissed,  with  costs. 


JAMES  MCDONNELL  AND  RICHARD  MCDONNELL, 

APPELLANTS,  v.  FANNY  CULVER,  RESPONDENT. 

Party  watt  —  right  to  use  of — chose  in  action,  when. 

B.  erected  on  the  land  of  his  wife  a  building  with  his  own  money,  and  before  the 
erection  thereof  agreed  with  C.  to  place  one-half  of  one  of  the  walls  thereof  on 
her  land,  under  an  agreement  that  she  should,  when  the  wall  was  used  by  her, 
pay  for  so  much  thereof  as  she  should  use.  The  agreement  was  between  B. 
and  C.  personally,  and  not  made  by  B.  for  or  on  behalf  of  his  wife. 

Held,  that  such  agreement  was  a  mere  chose  in  action,  the  right  to  which  was  in 
B.,  and  not  having  been  transferred  to  his  wife,  could  not  be  transferred  by  her 
to  her  grantees. 

APPEAL  from  a  judgment  entered  upon  the  report  of  a  referee 
dismissing  plaintiff's  complaint. 

In  the  year  1870  Eunice  Bowen,  wife  of  Adna  Boweu,  was  the 
owner  of  a  vacant  lot  on  the  east  side  of  Shelby  street,  in  the  village 
of  Medina.  The  defendant  was  at  the  same  time,  and  is  now,  the 
owner  of  a  vacant  lot  adjoining  the  lot  of  said  Eunice  Bowen  on 
the  north.  In  the  year  1870  said  Adna  Bowen  erected  a  stone 
building  on  the  lot  owned  by  Eunice  Bowen.  Prior  to  the  erection 
of  such  building,  said  Adna  Bowen  ma  le  a  verbal  agreement  with 
defendant,  by  which  he  was  to  put  one-half  of  the  north  wall  of  his 
building  on  defendant's  land,  and  whenever  the  wall  was  used  by 
defendant  she  was  to  pay  him  for  one-half  the  wall  used  by  her. 
Adna  Bowen  erected  the  building  and  wall  in  question  without  any 
directions  from  his  wife,  and  with  his  own  money,  and  made  the 
lontract  to  build  in  his  own  name  He  erected  one-half  of  the 
oorth  wall  of  his  building  on  defendant's  land.  Since  the  erection 
of  a  building  by  Adna  Bowen  a  building  has  been  erected  on 
defendant's  land,  and  a  portion  of  the  wall  erected  by  Bowen  used 


156  MCDONNELL  v.  CULVER. 

FOURTH  DEPARTMENT,  JUNE  TERM,  1876. 

in  the  construction  thereof.  On  or  about  the  1st  day  of  January, 
1871,  said  Eunice  Bowen  sold  and  conveyed  the  land  upon  which 
said  building  was  so  erected  by  Adna  Bowen,  to  the  plaintiffs. 
Afterward,  and  about  the  1st  day  of  July,  1873,  the  said  Eunice 
Bowen  executed  and  delivered  to  plaintiffs  a  paper,  as  follows : 

"  For  value  received  of  Richard  and  James  McDonnell,  I,  Eunice 
Boweii,  of  Medina,  Orleans  county,  State  of  New  York,  do  hereby 
sell,  assign,  transfer  and  set  over  and  convey  to  said  Richard  and 
James  McDonnell  and  their  assigns,  the  entire  party  wall  now  exist- 
ing between  a  store  constructed  by  me  and  the  lot  of  Mrs.  Fanny 
Culver,  with  the  right  and  privilege  to  the  said  Richard  and  James 
McDonnell  to  demand,  collect,  receive,  retain  and  enjoy  to  them- 
selves and  their  heirs  and  assigns  forever  the  pay  for,  or  value  of,  the 
part  or  portion  of  wall  which  shall  or  may  be  used  by  said  Mrs. 
Fanny  Culver  or  her  assigns  in  any  building  to  be  erected  on  the 
lot  of  said  Mrs.  Fanny  Culver,  or  otherwise  used,  as  the  case  may 
be.  Said  wall  is  in  Medina,  N.  Y. 

"As  witness  my  hand  and  seal,  this  1st  day  of  July,  1873. 

"EUNICE  BOWEN."    [L.  B.] 

Plaintiffs  brought  this  action  as  assignees  of  Eunice  Bowen. 
H.  D.  Titcker^  for  the  appellants. 
Henry  A.  Ghilds,  for  the  respondent. 

TALOOTT,  J. : 

This  is  an  appeal  from  a  judgment  for  the  defendant,  entered  on 
the  report  of  a  referee.  The  action  was  brought  to  recover  a  por- 
tion of  the  cost  of  a  party  wall,  in  the  village  of  Medina,  upon  the 
allegation  that  the  plaintiff's  grantor  erected  the  said  party  wall, 
one-half  on  her  own  land  and  one-half  on  the  laud  of  the  defend- 
ant, and  under  the  agreement  that  when  the  defendant  used  the 
said  party  wall  she  would  pay  for  so  much  thereof  as  she  should 
use. 

The  fact  was,  that  the  said  party  wall  was  built  by  Adna  Bowen, 
the  husband  of  the  plaintiff's  grantor,  and  upon  her  land  with  his 
own  money,  and  the  agreement  in  reference  to  the  party  wall  was, 
*s  found  by  the  referee,  between  the  said  Adna  Bowen  and  the 


ANSONIA  BRASS  &  COPPER  CO.  v.  BABBITT.        15? 
FOURTH  DEPARTMENT,  JUNE  TERM,  1876. 

defendant  personally,  and  not  an  agreement  made  by  or  in  behalf 
of  Eunice  Bowen,  the  owner  of  the  land  on  which  one-half  the 
wall  was  built.  Under  these  circumstances  such  an  agreement  has 
been  held  to  be  a  mere  personal  covenant  between  the  contracting 
parties.  (Cole  v.  Hughes,  54  N.  Y.,  444.)  The  right  under  the 
contract  constituted  a  mere  chose  in  action,  the  right  to  which  was 
in  Adna  Bowen  and  which  had  never  been,  in  any  manner,  trans- 
ferred to  the  plaintiffs  in  the  action. 

In  the  case  (Fowler  v.  Seaman,  40  N.  Y.,  592)  referred  to  by 
the  counsel  for  the  plaintiffs  it  had  been  found,  as  a  question  of 
fact,  that  the  husband  was  the  agent  of  the  wife  in  erecting  the 
building,  although  the  minority  of  the  court  held  that  there  waa 
no  evidence  to  sustain  the  finding.  In  this  case  the  finding  of  fact 
is  the  other  way. 

Present  —  MULMN,  P.  J.,  SMITH  and  TALOOTT,  JJ. 
Judgment  affirmed,  with  costs. 


ANSONIA  BRASS  AND  COPPER  COMPANY,  APPELLANT, 
v.  GEORGE  BABBITT  AS  SHERIFF  OF  JEFFERSON  COUNTY, 
RESPONDENT. 

Sheriff — liable  for   release  of  levy  on  property  of  judgment  debtor,  on  Jus  being 

adjudged  a  bankrupt. 

The  plaintiff  recovered  a  judgment  against  one  Prink  for  $346.04,  and  on  the 
26th  of  June,  1873,  under  an  execution  issued  thereon,  the  sheriff  levied  on 
sufficient  personal  property  to  satisfy  the  execution.  After  the  levy,  proceed 
ings  in  bankruptcy  were  taken  against  Frink,  and  the  sheriff  released  the  prop 
erty  levied  on  and  returned  the  execution  unsatisfied.  On  a  suit  against  the 
sheriff  therefor,  he  set  up  as  a  defense: 

1st.  That  pending  proceedings  in  bankruptcy  he  (the  sheriff)  was  enjoined  from 
further  proceedings  on  the  executiou. 

BeJd,  that  this  was  no  defense.  For  if  it  applied  to  the  property  levied  on,  the  injunc- 
tion neither  commanded  or  authorized  the  sheriff  to  release  the  same  or  discharge 
it  from  his  levy.  It  simply  restrained  him  from  making  any  disposition  of 
it.  But  it  did  not  apply  to  the  property  levied  on,  as  when  a  levy  has  been 
made  before  the  commencement  of  proceedings  in  bankruptcy,  the  possession 
and  legal  title  are  in  the  sheriff  for  the  purpose  of  satisfying  the  process  in  his 


158        ANSONIA  BRASS  &  COPPER  CO.  a  BABBITT. 
FOURTH  DEPARTMENT,  JUNE  TERM,  1876. 

hands,  and  he  had  the  right  to  go  on  and  sell  the  property,  being  accountable 
only  for  the  surplus,  if  any,  to  the  bankruptcy  court. 

2d.  That  the  plaintiff  directed  the  sheriff  to  ruiaiu  the  execution  till  requested  to 
make  a  return  thereof,  and  subsequently  directed  him  to  make  a  return  imme- 
diately. 

Held,  that  this  was  no  excuse  for  discharging  the  property  and  releasing  it  from 
custody,  especially  as  the  direction  was  given  upon  the  sheriff's  advice  and 
statement,  that  he  would  in  the  mean  time  hold  his  levy. 

3d.  That  the  United  States  marshal,  by  virtue  of  a  warrant  issued  to  him  in  said 
bankruptcy  proceedings,  and  before  the  return  of  the  execution,  took  posses- 
sion of  the  property  levied  on. 

Held,  that  this  was  no  defense;  that  the  taking  by  the  marshal,  even  if  done 
against  the  consent  of  the  sheriff,  was  without  authority  and  illegal,  the  sheriff 
having  both  the  legal  title  and  possession  of  the  property;  that,  even  supposing 
a  yielding  up  thereof  to  a  vis  mcyor  would  have  afforded  an  excuse,  the 
sheriff  surrendered  the  property  upon  the  mere  exhibit  of  the  warrant  and 
demand  of  the  marshal.  The  marshal  had  no  authority  to  take  it,  and  an  appli- 
cation by  the  sheriff  to  the  District  Court  which  issued  the  warrant  would  doubt- 
less have  resulted  in  an  immediate  release  of  the  property,  or  of  an  amount 
thereof  sufficient  to  have  satisfied  the  execution ;  and  it  was  the  sheriff's  duty  to 
have  resorted  to  all  reasonable  means  to  protect  his  levy,  instead  of  surrender- 
ing it  without  objection  or  remonstrance. 

tth.  That  the  plaintiff  had  proved  the  claim  set  forth  in  the  complaint,  in  the 
proceedings  in  bankruptcy,  before  the  commencement  of  his  suit  against  the 
sheriff,  and  a  dividend  had  been  duly  declared  to  the  plaintiff  on  such  proof  of 
claim. 

Held,  that  although  section  21  of  the  bankruptcy  act  provides  that  "  no  cred- 
itor proving  his  debt  shall  be  allowed  to  maintain  any  suit  at  law  or  in  equity 
therefor  against  the  bankrupt,  but  shall  be  deemed  to  have  waived  all  right  of 
action  against  the  bankrupt,  and  all  proceedings  already  commenced  or  unsatis- 
fied judgments  already  obtained  thereon  against  the  bankrupt  shall  be  deemed  to 
he  discharged  and  surrendered  thereby,"  yet  the  proof  of  the  judgment  in  the 
bankruptcy  court  (admitting  it  was  legally  done)  did  not  in  any  manner  affect 
the  liability  of  the  sheriff  for  the  previous  unauthorized  release  of  the  prop- 
erty levied  on.  The  intent  of  the  section  was  only  to  prevent  future  proceed- 
ings against  the  bankrupt  or  his  estate.  The  liability  of  the  sheriff  for  releasing 
the  property  was  a  wholly  collateral  liability,  arising  from  a  breach  of  official 
duty,  and  did  not  constitute  in  this  case  any  daim  dr  security  which  could  be 
enforced  by  the  assignee  in  bankruptcy,  to  whom  the  property  levied  on  had 
been  delivered. 

APPEAL  from  a  judgment  against  the  plaintiff  entered  on  the 
verdict  of  a  jury,  under  direction  of  the  court. 

This  action  was  commenced  in  June,  1874,  and  came  to  trial 
before  Judge  HARDIN  and  a  jury,  at  Jefferson  Circuit,  November 
1875,  when  the  evidence  disclosed  the  following  facts  : 


ANSONIA  BRASS  &  COPPER  CO.  v.  BABBITT.        159 

FOUKTH  DEPARTMENT,  JUNE  TERM,  1876. 

In  June,  1873,  the  plaintiff  issued  to  the  defendant  an  execution 
%gainst  the  property  of  one  Heraan  H.  Frink,  and  under  it  the 
defendant  levied  upon  property  of  Frink  sufficient  to  satisfy  the 
execution,  on  the  26th  day  of  June,  1873. 

August  2d,  1873,  a  petition  in  bankruptcy  was  filed  against 
Frink  and  he  was  adjudicated  a  bankrupt  August  15th,  1873. 

August  4th,  1873,  an  order  of  the  bankruptcy  court  was  served 
on  the  defendant,  restraining  him,  "  until  the  further  order  of  the 
court,  from  making  any  transfer  or  disposition  of  any  of  the  prop- 
erty of  the  said  Heman  H.  Frink." 

In  consequence  of  being  served  with  this  order,  the  defendant 
did  not  sell  the  property  levied  upon,  as  he  had  advertised  to  do. 

August  8th,  1873,  the  defendant  wrote  to  the  plaintiff's  attorney 
for  permission  to  retain  the  execution  beyond  the  sixty  days,  in 
order  that  he  might  retain  his  levy,  and  the  attorney  replied 
authorizing  him  "  to  retain  the  execution  till  requested  to  make  a 
return." 

The  defendant  (at  what  precise  time  was  not  shown,  though  it 
would  appear  in  August,  1873),  voluntarily  released  his  levy  and 
surrendered  possession  of  the  property  to  the  United  States  mar- 
shal, who  demanded  and  received  it  by  virtue  of  the  general  war- 
rant directing  him  to  take  the  property  of  the  bankrupt,  and  turned 
it  over  to  the  assignee  in  bankruptcy  early  in  October,  1673. 

November  13th,  1873,  the  plaintiff  made  a  deposition  stating  its 
claim  against  Frink,  which  was  sent  to  the  register  in  bankruptcy 
having  charge  of  Frink's  case,  and  by  him  on  the  12th  of  March, 
1874,  handed  to  the  assignee,  who,  with  full  knowledge  that  the 
plaintiff  claimed  the  lien  of  a  levy  and  intended  to  hold  on  to  it, 
and  without  requesting  a  surrender  of  the  lien,  made  no  objection 
to  the  deposition  being  treated  as  a  proper  proof  of  debt,  or  to 
permitting  the  name  of  the  defendant  to  be  entered  on  the  list  of 
those  who  had  properly  proved  debts  against  Frink  and  become 
entitled  to  the  standing  of  general  creditors  in  the  bankruptcy  pro- 
ceedings. 

In  September,  1874  (three  months  after  this  suit  was  com- 
menced), the  plaintiff  made  a  motion  in  the  bankruptcy  court  for 
leave  to  withdraw  or  correct  its  deposition,  and  the  motion  was 
denied. 


160        ANSONIA  BRASS  &  COPPER  CO.  w.  BABBITT. 
FOURTH  DEPARTMENT,  JUNE  TERM,  1876. 

The  plaintiff  never  took  any  part  in  the  bankruptcy  proceedings 
except  to  make  the  deposition  and  ask  leave  to  withdraw  or  correct 
it,  after  hearing  that  it  had  been  treated  as  a  proof  of  debt. 

Payment  of  a  dividend  declared  in  the  bankruptcy  proceedings 
March  12th,  1874,  was  offered  the  plaintiff  on  its  claim,  May  1st, 
1874,  on  condition  of  surrendering  its  lien  ;  but  the  plaintiff 
declined  to  surrender  its  lien  or  accept  the  dividend. 

May  18th,  1874,  the  defendant  was  requested  to  return  the  exe- 
cution, and  on  the  twentieth  he  made  the  following  return : 

I  certify  that  on  the  26th  day  of  June,  1873,  I  levied  the 
annexed  execution  on  the  personal  property  of  defendant,  and 
advertised  the  same  for  sale;  that  before  the  day  of  sale,  the 
defendant  was  put  in  bankruptcy  and  I  was  restrained  from  further 
proceedings  thereon  by  an  order  of  the  United  States  District 
Court  for  the  northern  district  of  New  York.  I  have  held  said 
execution  until  the  present  time  by  direction  of  the  plaintiff's 
attorney,  and  he  now  directs  me  to  return  the  same,  nothing  hav- 
ing been  collected. 

The  judge  directed  a  verdict  for  the  defendant,  and  from  the 
judgment  entered  upon  that  verdict  the  plaintiff  appealed. 

Marshall  P.  Stafford,  for  the  appellant. 
A.  E.  Kirby,  for  the  respondent. 

TALCOTT,  J. : 

This  is  an  appeal  from  a  judgment  for  the  defendant  on  a  verdict 
rendered  at  the  Jefferson  Circuit  by  direction  of  the  court.  The 
plaintiff,  in  June,  1873,  recovered  a  judgment  against  Heman  H. 
Frink  for  $346.04,  and  on  the  25th  of  June,  1873,  by  its  attorney, 
issued  an  execution  thereon  to  the  sheriff  of  Jefferson  county.  On 
the  20th  of  June,  1873,  the  sheriff  levied  upon  personal  property 
of  the  defendant  sufficient  to  satisfy  the  execution,  and  this  action 
is  founded  upon  the  allegation  that  the  sheriff  illegally  released  the 
property  levied  upon  and  returned  the  execution  wholly  unsatis- 
fieJ.  The  defenses  set  up  are : 

First.  That  after  the  levy,  and  on  the  2d  of  August,  1873,  a 
petition  in  bankruptcy  was  filed  against  said  Frink  in  the  United 


ANSONIA  BRASS  &  COPPER  CO.  v.  BABBITT.        161 

FOURTH  DEPARTMENT,  JUNE  TERM,  1876. 

States  District  Court  for  the  northern  district  of  New  York.  That 
on  the  15th  day  of  August,  1873,  Frink  was  duly  declared  a  bank- 
rupt ;  and  that  after  the  filing  of  the  petition  and  pending  the 
proceedings  in  bankruptcy  the  defendant  was,  by  the  said  District 
Court,  enjoined  from  further  proceedings  on  the  execution. 

Second.  That  the  plaintiff  directed  the  defendant  to  retain  the 
execution  till  requested  to  make  a  return  thereof,  and  subsequently 
directed  him  to  make  a  return  immediately. 

Third.  That  the  United  States  marshal  for  the  northern  district 
of  New  York,  by  virtue  of  a  warrant  issued  to  him  in  said  pro- 
ceedings in  bankruptcy,  and  before  the  return  of  the  execution, 
took  possession  of  the  property  levied  on. 

Fourth.  That  the  plaintiff  proved  the  claim  set  forth  in  the 
complaint  in  the  proceedings  in  bankruptcy,  before  the  commence- 
ment of  this  suit,  and  that  a  dividend  has  been  duly  declared  to 
the  plaintiff  on  such  proof  of  claim.  These  various  defenses  were 
relied  upon  by  the  defendant  upon  the  trial,  and  upon  one,  or  all 
of  them,  a  verdict  was  directed  for  the  defendant.  The  injunction 
order  in  the  proceedings  in  bankruptcy  is  set  forth  in  the  case,  and 
for  several  reasons  it  affords  no  justification  to  the  sheriff  for  releas- 
ing the  property  which  had  been  previously  levied  upon  by  virtue 
of  the  plaintiff's  execution. 

First.  If  it  applied  to  the  property  levied  upon  it  neither  com- 
manded nor  authorized  the  sheriff  to  release  the  same  or  to  discharge 
it  from  his  levy.  It  simply  restrained  him  from  making  any  dispo- 
sition of  it  until  the  further  order  of  the  court. 

Second.  It  did  not  apply  to  the  property  which  was  in  the 
custody  of  the  sheriff  by  virtue  of  his  previous  levy.  The  law  is 
well  settled  by  numerous  decisions  that  when  a  levy  has  been  made 
before  the  commencement  of  proceedings  in  bankruptcy,  the  pos- 
session and  legal  title  are  in  the  officer  making  the  levy  for  the  pur- 
pose of  satisfying  the  process  in  his  hands ;  and  he  has  the  right  to  go 
on  and  sell  the  property,  being  accountable  for  the  surplus,  if  any,  to 
the  bankruptcy  court  or  its  assignee.  (Bump  on  Bankruptcy  [8th  ed.], 
chap.  12,  p.  206 ;  Matter  of  Bernstein,  Nat.  Bk.  Reg.,  sup.,  43  ;  Mar- 
shall v.  Knox,  16  Wall.,  551 ;  8 Nat.  Bank.  Reg.,  104 ;  Smith  v.  Mason, 
14  Wall.,  419.)  It  would  not  have  been  a  violation  of  the  mandate 
of  the  court  in  bankruptcy  had  the  sheriff  proceeded  to  sell  the 
HUN— VOL.  VIII.  21 


162        ANSONIA  BRASS  <fc  COPPER  CO.  u.  BABBITT. 
FOTJKTH  DEPARTMENT,  JUNE  TERM,  1876. 

property  on  the  execution.  It  was  not,  in  law,  the  property  of  tne 
bankrupt,  except  so  far  as  the  possible  surplus  was  concerned,  as 
ta  which  he  had  an  equitable  interest. 

The  direction  of  the  plaintiff's  attorney  to  retain  the  execution 
till  requested  to  return  the  same,  afforded  no  excuse  for  discharging 
the  property  and  releasing  it  from  custody,  especially  as  this  was 
done  upon  the  advice  and  request  of  the  sheriff,  and  the  statement 
that  he  would,  in  the  mean  time,  hold  his  levy.  (See  the  letter  of 
defendant  to  the  attorney  for  the  plaintiff,  dated  August  8,  1873.) 
The  claim  that  the  United  States  marshal  took  possession  of  the 
property  levied  on  affords  no  excuse  to  the  sheriff.  The  taking  of 
the  property  by  the  marshal,  even  if  done  against  the  consent  of  the 
sheriff,  was  without  authority  and  illegal,  for  the  reasons  heretofore 
assigned  to  show  that  the  injunction  order  did  not  apply  to  the 
property  in  the  custody  of  the  sheriff  under  his  previous  levy. 
There  seems  to  be  no  foundation  in  the  evidence  for  the  suggestion 
that  the  delivery  up  of  the  property  to  the  custody  of  the  marshal 
was  a  necessary  yielding  to  a  vis  major,  supposing  this  would  have 
afforded  an  excuse.  The  sheriff  relinquished  the  custody  of  the 
property  upon  the  mere  exhibition  of  the  warrant  and  upon  the 
demand  of  the  marshal.  The  marshal  had  no  authority  to  take  the 
property  levied  on,  and  doubtless  an  application  by  the  sheriff  to 
the  District  Court  which  issued  the  warrant  in  bankruptcy  would 
have  resulted  in  an  immediate  release  of  the  property  levied  on,  or 
at  least  of  an  amount  thereof  sufficient  to  have  satisfied  the  execution. 
It  was  the  duty  of  the  sheriff  to  resort  to  all  reasonable  means  to 
protect  his  levy,  instead  of  which  he  appears  to  have  surrendered 
the  property  without  objection  or  remonstrance.  The  precise  date 
of  the  surrender  of  the  property  by  the  sheriff  is  not  stated  in  the 
case,  but  from  the  proceedings  arid  papers  which  were  put  in  evi- 
dence for  other  purposes,  it  seems  to  be  evident  that  the  surrender 
by  the  sheriff,  and  the  taking  possession  by  the  marshal,  must  have 
been  in  the  month  of  August,  1873.  The  plaintiff*  undertook  to 
prove  its  debt  upon  the  judgment  in  the  bankruptcy  court  in 
November,  1873.  The  liability  of  the  sheriff  to  the  plaintiff  was 
Incurred  when  he  surrendered  the  property  levied  on,  in  August. 
It  is  claimed  that  the  proof  of  the  debt  in  bankruptcy  released  the 
cause  of  action  against  the  sheriff.  This  point,  though  not  the 


ANSONIA  BRASS  &  COPPER  CO.  u.  BABBITT.        163 
FOURTH  DEPARTMENT,  JUNE  TERM,  1876. 

ground  upon  which  the  verdict  at  the  Circuit  was  directed,  seems 
to  present  the  most  serious,  and  perhaps  doubtful,  question  in  the 
case.  The  bankrupt  law,  in  the  twenty-first  section,  provides  "  that 
no  creditor  proving  his  debt  or  claim  shall  be  allowed  to  maintain 
any  suit  at  law  or  in  equity  therefor  against  the  bankrupt,  but  shall 
be  deemed  to  have  waived  all  right  of  action  against  the  bankrupt, 
and  all  proceedings  already  commenced,  or  unsatisfied  judgments 
already  obtained  thereon,  shall  be  deemed  to  be  discharged  and 
surrendered  thereby" 

And  the  twenty-second  section  provides  that  the  proof  of  a  debt 
must  set  forth  whether  any,  and  what,  securities  are  held  therefor, 
or  must  state  that  the  claimant  has  not,  nor  has  any  person  for  his 
use,  received  any  security  or  satisfaction  therefor. 

There  is  no  doubt  upon  the  authorities,  that  if  the  plaintiff  had 
proved  its  debt  in  due  form  while  the  sheriff  had  in  his  custody  the 
property  seized  by  him  upon  the  execution,  it  would  have  been 
necessary  to  set  forth  such  facts  in  the  proof  of  the  debt,  and  the 
assignee  in  bankruptcy  would  be  subrogated  to  the  plaintiff's  rights 
in  reference  to  the  property  so  in  the  custody  of  the  sheriff.  But  it 
is  to  be  borne  in  mind  that  what  is  claimed  as  proof  of  the  debt  in  the 
bankruptcy  proceedings  was  not  made  until  long  after  the  sheriff  had 
parted  with  the  custody  of  the  goods  levied  on,  and  they  had  passed 
under  the  control,  in  fact,  of  the  assignee,  and  the  only  security  which 
the  plaintiff  had,  so  far  as  the  sheriff  was  concerned,  was  the  collat- 
eral liability  of  the  latter  for  releasing  the  goods.  It  is  noticeable 
that  the  alleged  proof  of  the  plaintiff's  debt  wholly  omits  to  state 
that  he  has  any  security  therefor  other  than  that  offered  by  the 
judgment  itself,  and  wholly  omits  to  pursue  the  statute  by  negativ- 
ing the  fact  that  he,  or  some  one  in  his  behalf,  has  received  security. 
Waiving,  for  the  present,  the  question  of  the  defective  form  of  the 
proof,  did  the  proof  of  the  plaintiff's  claim  in  bankruptcy  discharge 
the  right  of  action  against  the  sheriff?  If  it  did,  it  so  operated  by 
virtue  of  the  provision  of  the  twenty-first  section  which  declares 
that  all  unsatisfied  judgments  shall  be  deemed  to  be  discharged  and 
surrendered  thereb}T.  Upon  a  careful  examination  of  the  pro- 
visions of  the  section  it  will  be  seen  that  the  apparent  intent  of  the 
provisions  therein  contained  are  only  to  prevent  future  proceedings 
against  the  bankrupt,  or  his  estate,  and  it  answers  the  intent  of  the 


164        ANSONIA  BRASS  &  COPPER  CO.  v.  BABBITT. 

FOURTH  DEPARTMENT,  JUNE  TERM,  1876. 

statute  to  hold  that  the  judgment  is  to  be  deemed  discharged  and 
surrendered  so  far  as  the  bankrupt  and  his  estate  are  concerned,  as 
to  any  further  proceedings  thereon  against  them.  An  indorser  is 
not  discharged  by  proof  of  the  debt  against  the  maker  in  bank- 
ruptcy. (Merchant^  Nat.  Bank  v.  Comstock,  55  N.  Y.,  29.)  Nor 
does  it  discharge  one  collaterally  liable  for  the  same  debt.  (Shell- 
itigton  v.  Rowland,  53  N.  Y.,  375.)  It  would  hardly  be  con- 
tended that  in  case  the  holder  of  a  note  had  obtained  a  judgment 
against  both  maker  and  indorser,  proof  in  bankruptcy  as  against 
the  maker  would  discharge  or  surrender  the  judgment  so  far  as  the 
iudorser  was  concerned. 

In  Shellington  v.  Rowland  (supra)  the  defendant  was  held  liable 
as  a  stockholder  of  a  manufacturing  corporation  under  the  statute 
of  this  State,  notwithstanding  the  creditor  had  proved  his  claim 
against  the  corporation.  True,  in  that  case  the  creditor  had  not 
obtained  any  judgment  against  the  corporation,  and  that  circum- 
stance was  relied  on  to  defeat  the  recovery  against  the  stockholders 
under  the  statute.  The  court  held,  however,  that  the  creditor  was 
excused  from  the  performance  of  the  condition  precedent  pre- 
scribed by  the  statute,  by  reason  of  an  injunction  which  had  been 
issued  out  of  the  bankruptcy  court  restraining  the  prosecution  of 
the  suit  against  the  corporation,  but  it  was  not  suggested  that  if 
the  creditor  had  obtained  judgment  against  the  corporation,  its  sur 
render  and  discharge  under  the  twenty-first  section  of  the  bank 
rupt  law  would  have  in  any  manner  relieved  the  stockholder  from 
liability.  The  liability  of  the  sheriff  for  releasing  the  levy  in  this 
case  was  not  an  element  of  the  judgment  in  favor  of  the  plaintiff 
against  Frink.  It  was  a  wholly  collateral  liability,  arising  out  of  a 
breach  of  official  duty.  It  did  not  constitute,  in  this  case,  any 
claim  or  security  which  could  be  enforced  by  the  assignee  in  bank- 
ruptcy, to  whom  the  property  levied  on  had  been  delivered.  And 
we  think  that  the  proof  of  the  judgment  in  the  bankrupt  court  did 
not,  in  any  manner,  affect  the  liability  of  the  sheriff  for  the  pre- 
vious unauthorized  release  of  the  property  levied  on. 

There  are  some  questions  arising  upon  the  validity  ot  the 
alleged  proof  of  the  plaintiff's  debt;  it  does  not  appear  that  it 
took  any  part  in  the  bankruptcy  proceedings  other  than  sending  tc 
the  register  the  alleged  proof,  except  to  move  the  District  Court 


JRASS  &  COPPER  CO.  v.  BABBITT.        165 
Foimra  DEPARTMENT,  JUNK  TERM,  1876. 

for  leave  to  withdraw  or  correct  its  proof  in  bankruptcy,  which 
motion  was,  for  some  reason,  denied.  It  had  declined  to  receive 
the  dividend  or  to  assign  the  judgment.  The  claim  of  the  defend- 
ant is,  therefore,  that  the  supposed  proof  of  the  debt,  ipso  facto, 
operated  as  a  discharge  of  the  judgment  in  a  collateral  proceeding. 
It  seems  to  be  clear,  that  iu  order  to  have  such  effect  the  proof 
must  be  a  formal  compliance  with  the  act  of  congress  as  to  its  form. 
It  has  already  been  noticed  that  the  supposed  proof  did  not  comply 
with  the  act  of  congress,  in  the  particular  that  it  did  not  contain  any 
statement  that  neither  the  creditor,  nor  any  one  in  his  behalf,  had 
received  any  security.  Perhaps  this  omission  would  not  prevent 
the  proof  from  operating  as  a  discharge  of  the  judgment.  But 
there  seems  to  be  a  defect  in  the  proof  which  was  fatal  to  the  ope- 
ration of  the  bankrupt  law  upon  it,  and  because  of  which  defect  it 
can  be  truly  said  that  the  plaintiff  never  did  prove  its  debt.  The 
plaintiff  was  a  corporation  in  the  State  of  Connecticut.  The  bank- 
rupt law  provides  (§  22)  that  proof  of  debts,  by  or  in  behalf  of  a 
non-resident  of  the  district  where  the  bankruptcy  proceeding  is 
pending,  must  be  made  before  a  register  in  bankruptcy  in  (1ie  dis- 
trict where  the  creditor  resides,  or  before  a  commissioner  appointed 
by  the  Circuit  Court. 

The  supposed  proof  in  this  case  purports  to  have  been  made 
before  a  register  in  bankruptcy  in  the  southern  district  of  New 
York.  It  was  made  by  one  Jethro  W.  Wheeler,  claiming  to  be 
the  cashier  of  the  plaintiff,  who  does  not  state  that  his  own  resi- 
dence is  in  the  southern  district  of  New  York.  It  would  therefore 
seem  that,  in  fact,  no  proof  was  made  of  the  debt  according  to  the 
provisions  of  the  bankrupt  law,  and  that  the  mere  filing  of  the 
paper  called  proof,  not  verified  according  to  the  provisions  of  the 
bankrupt  law,  was  inoperative. 

It  is  quite  probable  that  the  bankrupt  court  could  have  ordered  this 
mistake  to  be  amended,  or  that  if  the  plaintiff  had  taken  any  action 
on  it  he  might  be  estopped.  But  as  it  is  insisted  that  the  plaintiff 
has  lost  its  rights  by  the  mere  filing  of  the  paper  in  question,  it 
*eems  to  be  a  sufficient  answer  to  say  that  the  paper  not  being 
proqf  of  a  debt  within  the  provisions  of  the  bankrupt  law,  could 
no*-.,  ex  proprio  vigore,  operate  to  discharge  the  judgment  or 


HELMER  v.  ST.  JOHN. 


FOURTH  DEPARTMENT,  JUNE  TERM,  1876. 


levy.     We  think  the  judgment  should  be  reversed  and  a  new  tria1 
ordered. 

Present  —  MULLIN,  P.  J.,  SMITH  and  TALOOTT,  JJ. 

Judgment  reversed  and  a  new  trial  ordered,  costs  to  abide  the 
event. 


JOSIAH  H.  HELMER,  APPELLANT,  v.  DANIEL  B.  ST. 
JOHN"  AND  OTHERS,  EXECUTORS,  ETC.,  OF  WASHINGTON 
HUNT,  DECEASED,  RESPONDENTS. 

Agency  —  revoked  by  death  —  Obligation  created  after  death  of  principal  —  not  enforce 
able  against  his  representative*. 

An  agreement  was  executed  by  certain  shareholders  of  a  manufacturing  com- 
pany, reciting,  in  substance,  that  in  order  to  raise  money  to  carry  on  its 
business,  notes  should  be  made  from  time  to  time,  and  indorsed  by  one  OT 
more  of  them,  and  that  in  case  any  of  the  indorsers  of  such  paper  should 
incur  any  loss  by  reason  thereof,  each  should  pay  his  equal  proportion 
thereof.  In  an  action  by  one  of  them,  who  had  indorsed  and  paid  such 
paper,  to  recover  from  the  executors  of  H.,  another  signer  of  said  agreement, 
his  proportion  thereof,  the  complaint  not  alleging  that  said  note  was  indorsed 
in  the  lifetime  of  H. 

Held,  on  demurrer  thereto  that  it  did  not  state  facts  sufficient  to  constitute  a 
cause  of  action,  that  the  agreement,  in  substance,  created  an  agency  by  which 
any  shareholder  could  bind  another,  if  not  to  the  holder  of  the  paper,  at  least 
to  the  other  joint  signers  of  the  agreement,  as  a  surety  for  the  corporation;  that, 
as  an  agency  is  revoked  by  the  death  of  the  principal,  the  power  to  bind  H. 
ceased  at  his  death,  and  as  no  obligation  by  indorsement  was  alleged  to  have 
oeen  incurred  by  the  plaintiff  during  the  lifetime  of  H.,  and  on  his  death  any 
authority  to  bind  him  or  his  estate  ceased,  no  cause  of  action  was  stated. 

Held,  further,  that  the  contract  imposed  a  joint,  and  not  a  several  or  joint  and 
several  liability,  upon  the  signers  of  it;  that  there  was  no  consideration  for 
the  agreement  except  the  suretyship;  that  formerly  the  liability  of  any  one 
of  the  joint  contractors  was  discharged  at  law  by  death,  and  no  action  could 
be  maintained  against  his  personal  representatives  in  equity  where  the  joint 
obligation  was  founded  solely  upon  the  consideration  of  suretyship,  but  undei 
the  modern  doctrine,  the  representatives  of  H.  would  probably  have  been 
liable  to  contribute  for  any  liability  incurred  by  the  plaintiff,  for  an  indorse- 
ment made  during  the  lifetime  of  H. 


HELMER  o.  ST.  JOHN. 


FOTTRTH  DEPARTMENT,  JITNE  TERM,  1876. 


APPEAL  from  an  order  made  at  a  Special  Term  sustaining  a 
demurrer  to  a  complaint,  interposed  on  the  ground  that  it  did  not 
state  facts  sufficient  to  constitute  a  cause  of  action. 

L.  F.  <&  G.  W.  Bowen,  for  the  appellant. 
George  C.  Greene,  for  the  respondents. 

TALOOTT,  J.  : 

This  is  an  action  against  the  executors  of  the  late  Washington 
Hunt,  to  recover  from  his  estate  the  sum  of  about  $23,000,  alleged 
to  be  the  proportion  for  which  said  estate  is  liable  to  the  plaintiff, 
being  part  of  the  moneys  alleged  by  the  plaintiff  to  have  been  paid 
by  him,  to  take  up  a  promissory  note  made  by  the  Lockport  Woolen 
and  Knitting  Company  for  $116,448.46,  and  indorsed  by  the  plain- 
tiff for  the  benefit  of  the  said  company.  The  complaint,  for  the 
purpose  of  showing  a  liability  on  the  part  of  Mr.  Hunt's  estate,  sets 
up  an  agreement  made  in  March,  1865,  in  the  following  words,  viz.  : 

"  In  order  to  raise  money  for  carrying  on  the  business  of  the 
Lockport  Woolen  and  Knitting  Company,  it  is  proposed  that  notes 
shall  be  made  from  time  to  time,  as  required  for  that  purpose,  and 
indorsed  by  one  or  more  of  the  shareholders,  according  to  circum- 
stances. Therefore,  the  subscribers,  being  shareholders  in  said 
company,  do  hereby  stipulate  and  agree,  to  and  with  each  other, 
that  in  case  any  of  the  indorsers  of  such  paper  shall  incur  any  per- 
sonal liability  or  loss  by  reason  of  such  indorsement,  such  liability 
or  loss  shall  be  equally  divided  between  the  subscribers  hereto,  and 
each  agrees  to  pay  his  equal  share  or  proportion  of  the  same,  so  that 
the  legal  obligation  and  responsibility  shall  be  the  same  as  if  said 
paper  were  indorsed  jointly  by  all  the  undersigned  shareholders. 

"March  22,  1865. 

(Signed)  "W.  HUNT. 

"J.  W.  HELMER. 
«G.  W.ROGERS. 
"W.T.ROGERS. 
"J.  H.  HELMER." 

The  complaint  avers  that  the  said  The  Lockport  Woolen  and 
Knitting  Company  is  a  manufacturing  corporation  created  under 


168  HELMER  v  ST.  JOHN. 


FOURTH  DEPARTMENT,  JUNE  TERM,  1876. 


the  statute  of  this  State ;  that  the  persons  who  signed  said  agreement 
were  shareholders  in  the  said  corporation ;  that  Washington  Hunt 
continued  to  be  such  shareholder  until  his  death,  and  the  other  par- 
ties still  continue  to  be  such  shareholders.  The  complaint  then  avers 
the  making  of  the  note  in  question,  on  or  about  the  1st  day  of  July, 
1873,  bearing  date  on  that  day,  payable  to  the  order  of  the  plaintiff, 
which  the  said  plaintiff  then  and  there,  "  under  and  in  pursuance  of 
the  provisions  of  the  said  agreement,  and  for  the  benefit  of  the  said 
corporation,"  indorsed.  The  complaint  then  sets  forth  that  the 
plaintiff  was  charged  as  indorser  of  the  note,  and  paid  the  same,  and 
that  the  corporation  has  not  paid  the  same,  or  any  part  thereof ;  that 
Washington  Hunt  died  in  February,  1867,  leaving  the  defendants 
executors  of  his  will,  and  that  letters  testamentary  were  duly  issued 
to  them,  and  they  assumed  the  duties  of  such  executorship,  and  that 
as  such  executors  they  are  liable  to  pay  the  plaintiff  the  one-fifth  of 
the  loss  incurred  by  the  plaintiff  by  the  payment  of  the  said  note. 
The  second  count  is  substantially  like  the  first,  except  that  it  avers, 
in  substance,  that  the  large  note  paid  by  the  plaintiff  was  the  aggre- 
gate of  various  notes  made  by  the  corporation  and  indorsed  by  the 
defendant  to  raise  money  for  the  benefit  of  the  corporation,  which 
had  been  renewed  from  time  to  time.  The  complaint  does  not 
allege  that  any  of  said  previous  notes  were  made  or  indorsed  in  the 
lifetime  of  Washington  Hunt. 

The  defendants  demurred  to  each  count  of  the  complaint,  upon 
the  ground  that  it  did  not  state  facts  sufficient  to  constitute  a  cause 
of  action.  The  demurrer  was  sustained  at  the  Special  Term  and 
the  plaintiff  appeals  from  the  decision.  We  think  the  contract  set 
up  in  the  complaint  imposed  a  joint,  and  not  a  several  or  joint  and 
several,  liability  upon  the  signers  of  it.  It  expressly  declares  that 
the  "  legal  obligation  and  responsibility  shall  be  the  same  as  if  said 
paper  were  indorsed  jointly  by  all  the  undersigned  shareholders." 
True,  it  declares  that  the  "liability  or  loss  shall  be  equally  divided 
between  the  subscribers,  and  each  agrees  to  pay  his  equal  share  or 
proportion  of  the  same."  This  is  a  precise  statement  of  what  the 
liability  of  each  of  the  other  subscribers  would  have  been  to  the 
one  who  should  pay  the  note,  provided  it  had  been  jointly  indorsed 
by  all  the  signers  of  the  agreement,  and  does  not,  in  any  manner 
vary  that  portion  of  the  agreement  to  the  effect  that  the  legal  obli 


HELMER  v.  ST.  JOHN.  169 

FOUBTH  DEPABTMENT,  JUNE  TEBM,  1876. 

gation  and  responsibility  shall  be  the  same,  as  though  the  paper 
were  indorsed  by  the  signers  jointly.  It  is,  in  fact  and  substance, 
an  agreement  to  indorse  jointly  such  notes  as  are  specified.  The 
action  is  on  the  agreement.  It  does  not  arise  from  the  indorse- 
ment and  cannot  be  founded  thereon.  There  is  no  liability  tc 
indemnify  the  plaintiff,  except  by  virtue  of  the  agreement.  There 
was  no  consideration  for  the  agreement,  except  the  suretyship. 
It  was  a  joint  agreement  to  become  sureties  for  the  corporation. 
Since  the  obligation  to  indemnify  the  plaintiff  is  founded  wholly 
on  the  agreement,  it  is  therefore  an  action  to  enforce  that  agree- 
ment against  the  executors  of  one  of  the  joint  contractors.  In  such 
a  case  the  liability  of  any  one  of  the  joint  contractors  is  discharged 
at  law  by  death,  and  no  action  can  be  maintained  against  his  per- 
sonal representative  in  equity,  where  the  joint  obligation  is  founded 
solely  upon  the  consideration  of  suretyship.  This  is  well  settled. 
(Getty  v.  Binsse,  49  N.  Y.,  385.)  Indeed,  it  was  held  by  the 
Maryland  Court  of  Appeals  ( Watson's  Representatives  v.  Riley's 
Admrs.j  2  Harris  &  Gill,  305),  that  a  joint  surety  who  had  been 
compelled  to  pay  money  upon  the  joint  contract  of  suretyship  could 
not  recover  against  the  representative  of  his  deceased  co-surety, 
although  the  obligation  to  pay  arose  out  of  the  joint  contract. 

This,  however,  is  not  the  modern  doctrine.  If,  therefore,  any 
liability  had  been  incurred  by  the  plaintiff  for  an  indorsement 
made  during  the  lifetime  of  Mr.  Hunt,  the  personal  representative 
of  the  latter  would  probably  have  been  liable  to  contribute  to  the 
discharge  of  the  debt.  But  what  seems  to  be,  perhaps,  a  more  sat- 
isfactory answer  to  the  claim  of  the  plaintiff  is  founded  upon  the 
principles  of  the  law  of  agency,  and  we  are  inclined  to  place  our 
decision  of  this  case  more  especially  upon  this  latter  ground.  The 
agreement  was,  in  substance,  an  authority  to  any  shareholder  of  the 
company  to  pledge  the  responsibility  of  Mr.  Hunt,  as  a  surety  for 
the  corporation,  upon  any  paper  which  should  be  indorsed  by  such 
.  shareholder,  within  the  purview  of  the  agreement.  In  substance 
it  created  an  agency  by  which  any  shareholder  could  bind  Mr. 
Hunt,  if  not  to  the  holder  of  the  paper,  at  least  to  the  other  joint 
signers  of  the  agreement,  as  a  surety  for  the  corporation.  An 
agency  is  revoked  by  the  death  of  the  principal.  (Story  on  Agency, 
§  488,  and  cases  cited.)  The  power  to  bind  Mr.  Hunt  then  ceas?ix- 
Him— VOL.  VIII.  22 


170  HELMER  v.  ST.  JOHN. 

FOUKTH  DKPAKTJCENT,  JUNK  TERM,  1876. 

at  his  death.  No  obligation  by  indorsement  was  incurred  during 
his  lifetime  ;  and  after  that  any  authority  to  bind  him  or  his  estate 
for  any  such  purpose  ceased.  We  are,  therefore,  of  the  opinion 
that  the  complaint,  which  does  not  aver  that  any  indorsement  of 
the  corporation  paper  was  made  by  the  plaintiff  in  the  lifetime  of 
Mr.  Hunt,  does  not  set  forth  any  cause  of  action. 

Present — MULLIN,  P.  J.,  SMITH  and  TA.LOOTT,  JJ. 
Order  sustaining  demurrer  affirmed. 


MEMORANDA 


OF 


OASES   NOT   REPORTED    IN   FUTVU 


SOLOMON    Y.    LATT1MER    AND    DAYID    B.    WINTON, 
APPELLANTS,  v.  SEBA  A.  HILL  AND  OTHERS,  RESPONDENTS. 

Judge's  charge  —  objections  to  —  when  they  may  be  first  made,  on  appeal  —  Indorse 
ment — of  note — liability  on,  may  be  limited  by  the  terms  of  its  delivery. 

APPEAL  from  a  judgment  in  favor  ot  the  defendants,  entered  on 
the  verdict  of  a  jury,  and  from  an  order  denying  a  new  trial. 

This  action  was  brought  against  the  defendants  as  makers  and 
indorsers  of  a  promissory  note.  The  indorsers  alone  defended. 

The  making  and  indorsement  of  the  note  was  not  disputed.  The 
answer  contained  among  other  defenses,  that  the  note  was  indorsed 
for,  and  at  the  request  of  plaintiffs,  plaintiffs  at  the  time  agreeing 
that  indorsers  should  not,  nor  should  either  of  them,  be  held  respon- 
sible for  the  payment  of  the  note,  and  plaintiffs  would  withhold 
the  amount  of  the  note  out  of  moneys  plaintiffs  were  to  pay  on  a 
building  contract,  and  that  plaintiffs  paid  to  the  makers  of  the 
note  upon  said  building  contract,  after  the  note  was  given  and  after 
it  became  due,  more  than  enough  to  satisfy  said  note. 

On  the  trial  at  the  Circuit,  before  D WIGHT,  J.,  defendant  Arthur 
Hill  testified  that  he  was  present  when  the  note  in  suit  was 
indorsed  by  his  brother.  "Winton,  one  of  the  plaintiffs,  asked  him 
to  indorse  it ;  he  (the  brother)  objected  a  little.  Winton  told  him 
he  need  have  no  fears  of  being  responsible  on  the  note  because 
they  were  keeping  back  twenty  per  cent  of  the  money  that  was  to 
be  paid  to  the  makers  of  note,  to  pay  parties  purchasing  material 
for  the  bank,  to  see  that  they  would  have  their  pay,  and  his  sign- 
ing the  note  was  a  mere  form  that  they  had  to  live  up  to,  and  could 
not  consent  to  pay  the  money  unless  he  signed  it 


172  LATTIMER  v.  HILL. 

FOURTH  DEPARTMENT,  JUNE  TERM,  1876. 

Seba  Hill,  the  other  indorser,  swore  to  the  same  state  of  facts. 

The  plaintiffs  denied  having  made  the  statements  testified  to  by 
the  Messrs.  Hill. 

No  objection  was  taken  on  the  part  of  the  plaintiffs  to  the  evi 
dence  as  to  agreement  under  which  plaintiffs  received  the  note. 

On  this  branch  of  the  defense  the  court  charged  the  jury  that 
they  should  consider  the  evidence  bearing  upon  the  transaction  at 
the  bank  when  the  note  was  presented  and  indorsed,  and  if  they 
should  find  that  plaintiffs  took  the  note  under  an  agreement  not  to 
hold  the  defendants  responsible,  but  to  charge  the  same  in  account 
to  the  makers,  the  plaintiffs  could  not  recover. 

The  counsel  for  the  indorsers  did  not,  on  the  trial,  except 
to  this  part  of  the  charge,  but,  on  the  appeal,  insisted  that  that 
part  of  the  charge  above  cited  was  erroneous,  and  he  is  now 
entitled  to  the  benefit  of  an  exception  to  it,  although  the  evidence 
in  reference  to  which  the  charge  was  given  was  not  excepted  to, 
nor  the  charge  itself. 

The  court  at  General  Term  say :  "  If  the  charge  is  erroneous  it 
is  the  duty  of  the  court  to  grant  a  new  trial,  as  the  failure  to  except 
did  not  injure  the  plaintiff. 

There  was  no  evidence  they  could  give  that  would  entitle  the 
plaintiff  to  recover.  (Penfield  v.  Rich,  1  "Wend.,  380;  Archer  v. 
Uubbell,  4:  id.,  514;  Lawrence  v.  Barker,  5  id.,  301 ;  Benedict  v. 
Johnson,  2  Lans.,  94.) 

Although  it  is  well  settled  that  a  contract  cannot  be  contradicted 
or  varied  by  parol,  yet  it  is  equally  well  settled  that  a  party  making 
such  a  contract,  can  annex  to  the  delivery  of  such  a  contract  such 
conditions  as  he  may  deem  proper,  and  if  such  conditions  are  not 
performed  he  will  be  discharged  from  liability  thereon.  (Benton 
v.  Martin,  52  N".  Y.,  570.)  FOLGER,  J.,  in  this  case  says  :  '  Clearly, 
it  was  competent  to  show  the  terms  upon  which  the  duplicate  was 
delivered,  and  for  the  defendant  to  limit  and  restrict  his  liability 
thereby,  and  to  protect  himself  by  them  against  any  liability. 
Instruments  not  under  seal  may  be  delivered  to  the  one  to  whom 
upon  their  face  they  are  made  payable,  or  who,  by  their  terms,  is 
entitled  to  some  interest  or  benefit  under  them,  upon  conditions, 
the  observance  of  which  is  essential  to  their  validity,  and  the 
annexing  such  conditions  to  the  delivery,  is  not  an  oral  contradic 


LATTIMER  v.  HILL.  178 

FOUBTH  DEPARTMENT,  JUNE  TERM,  1876. 

tion  ol  the  written  obligations  though  negotiable,  as  between  the 
parties  to  it  or  others  having  notice.' 

It  needs  a  delivery  to  make  the  obligation  operative  at  all,  and 
the  effect  of  the  delivery  and  the  extent  of  the  operation  of  the 
instrument,  may  be  limited  by  the  conditions  with  which  the  deliv 
ery  is  made. 

To  the  parties  to  the  contract  it  matters  very  little,  whether 
the  indorser  of  a  note  declares  verbally,  at  the  time  of  indorsing 
the  note,  that  unless  certain  conditions  are  performed  or  certain 
contingencies  happen  he  will  not  be  liable,  or  whether,  at  the  time 
of  delivery,  he  annexes  verbally  the  same  conditions.  If  he  gets 
the  benefit  of  the  defense,  it  is  no  matter  to  him  in  which  of  the 
two  ways  it  is  attained. 

To  hold  an  indorser  to  liability  when  he  annexes  conditions,  by 
which  he  is  in  certain  contingencies  to  be  wholly  released  from  lia- 
bility, would  be  a  gross  fraud  upon  him,  and  it  is  on  this  ground 
that  courts  in  Pennsylvania  hold  that  the  indorser,  on  proof  of  the 
failure  to  comply  with  the  conditions  annexed  by  parol  to  the 
indorsement,  is  held  to  be  discharged.  (Byles  on  Bills,  96,  note  1  ; 
Prentiss  v.  (Craves,  33  Barb,  621.) 

In  Bruce  v.  Wright  (5  N.  Y.  S.  C.,  81),  this  court  held  that 
parol  evidence  was  admissible  to  show  that  defendant  indorsed  such 
note  for  the  purpose  of  transferring  title  only,  and  upon  an  agree- 
ment with  plaintiff  that  he  should  not  be  held  liable  thereupon. 

The  limitation  of  liability  attached  itself  to  the  delivery,  if  it 
.wuld  not  restrict  the  contract  of  the  indorsement." 

J.  W.  dk  H.  J.  Dininm/y  for  the  appellants.  A.  Hadden,  foi 
the  respondents. 

Opinion  by  MULLIN,  P.  J. 

Present — MULLIN,  P.  J.,  SMITH  and  TALOOTT,  JJ. 

Judgment  reversed  and  new  trial  granted,  costs  to  abide  event. 


174  HOWE  MACHINE  CO.  v.  PAGAN. 

FOURTH  DEPARTMENT,  JUNE  TERM,  1876. 


THE  HOWE  MACHINE  COMPANY,  RESPONDENT,  v.  JAMES 
A.  FAGAN,  APPELLANT. 

Receipt  —  when  evidence  of  a  promise  to  pay  to  another,  the  money  received. 

APPEAL  from  a  judgment  in  favor  of  the  plain  tiff,  entered  on  the 
ferdict  of  a  jury. 

This  was  an  action  to  recover  from  the  defendant  moneys  which 
he  had  assumed  to  receive  from  one  Charles  Good,  a  debtor  of  the 
plaintiff,  ta  be  applied  on  a  note  of  Good  held  by  the  plaintiff. 

The  defendant  had  been  an  agent  of  the  plaintiff  for  the  purpose 
of  selling  its  machines,  and  had  sold  one  to  Good.  Good  had 
given  his  note  to  the  plaintiff  for  sixty-five  dollars.  Before  the 
maturity  of  the  note  Good  paid  the  sixty-five  dollars  to  the  defend- 
ant, who  agreed  to  apply  the  same  on,  and  therewith  take  up,  the 
note  given  for  the  machine.  The  defendant  gave  Good  at  the 
time  his  receipt  as  follows : 

•*  $65.     Received  from  Charles  Good  sixty-five  dollars  to  take  up 
machine  note.     Boonville,  December  19,  1872. 

«J.  A.  FAGAN." 

There  was  no  promise  to  pay  the  money  over  to  the  plaintiff 
proved  other  than  that  contained  in  the  writing. 

The  court  at  General  Term  say :  "  We  think  the  receipt  fur- 
nished sufficient  prima  facie  evidence  of  such  a  promise  within  the 
sase  of  Lawrence  v.  Fox  (20  N.  Y.,  268)." 

Alfred  C.  Coxe,  for  the  appellant.  George  F.  Danforik,  for  the 
respondent. 

Opinion  by  TALCOTT,  J. 

Present — MULLIN,  P.  J.,  SMITH  and  TALCOTT,  JJ. 
Judgment  affirmed. 


ARMSTRONG  v.  FARGO.  175 

FOUBTH  DEPARTMENT,  JUNE  TEBM,  1876. 


JOHN  C.  ARMSTRONG  AND  LEWIS  DISS,  APPELLANTS,  t>. 
WILLIAM  G.  FARGO,  PRESIDENT  OF  THE  AMERICAN  EXPRESS 
COMPANY,  RESPONDENT. 

Evidence  —  Express  company  — proof  of  signature  to  receipt  of. 

APPEAL  from  an  order  denying  a  motion  for  judgment  on  the 
verdict  of  a  jury,  and  granting  a  motion  for  a  new  trial,  costs  to 
abide  event. 

The  plaintiffs  brought  this  action  to  recover  of  the  American 
Express  Company,  the  value  of  a  package  of  sewing  machine  attach- 
ments that  they  delivered  to  the  company,  to  be  carried  to  Boston 
and  there  delivered  to  M.  J.  Palmer  on  payment  of  the  value  of  the 
contents,  which  was  $118.08. 

The  defense  was,  that  on  the  envelope  covering  the  package  given 
to  defendant's  agent  at  Watertown,  was  a  direction  in  writing  to  the 
defendant  to  deliver  to  Palmer  on  receiving  $118.08,  and  the  charges 
for  carrying  the  same,  and  to  reship  it  if  ordered  by  Palmer ;  that 
the  package  was  offered  to  Palmer,  who  directed  that  it  be  sent  to 
Waterbury,  Connecticut.  The  defendant's  line  did  not  extend  to 
Waterbury,  nor  into  Connecticut.  The  Adams  Express  Company 
had  an  office  at  Waterbury,  and  carried  property  to  and  delivered  it 
at  that  place ;  that  defendant,  after  the  direction  given  by  Palmer, 
delivered  the  parcel  to  the  Adams  Express  Company,  taking  its 
receipt  therefor,  and  thus  discharged  itself  of  all  liability  for  the 
property. 

On  the  trial,  the  plaintiffs  proved  the  delivery  of  the  property  to 
the  defendant  to  deliver  to  Palmer,  at  Boston,  on  payment  of  the 
amount  specified  on  the  wrapper  and  the  charges,  and  subsequently, 
the  money  not  being  received,  plaintiffs  demanded  it  and  it  was  not 
paid. 

The  defendant  proved  the  carriage  to  Boston,  tender  of  the  prop- 
3rty  to  Palmer,  and  the  direction  by  him  to  send  to  Waterbnry.  A 
receipt  was  then  put  in  evidence,  signed  by  the  receiving  clerk  of  the 
Adams  Express  Company,  for  the  parcel,  showing  that  it  was 
received  to  be  carried  by  it  to  Waterbury. 

The  plaintiffs'  counsel  insisted  that  the  execution  of  the  receipt 


176  TOOLEY  v.  BACON. 

FOURTH  DEPARTMENT,  JUNE  TERM,  1876. 

was  not  proved  so  as  to  bind  the  Adams  Express  Company,  and  hence 
the  defendant  had  failed  to  show  performance  of  its  contract. 

The  court  at  General  Term  say :  "  The  proof  on  that  subject  wag 
that  it  was  signed  by  the  clerk  of  the  Adams  Company  employed 
to  receive  and  deliver  property  at  its  office.  He  had  acted  in  thai 
capacity  for  several  years.  The  witness  had  never  seen  him  write, 
but  he  knew  the  man,  and  had  seen  a  large  number  of  receipts  signed 
by  him  for  property  delivered  to  other  express  companies,  and  from 
the  knowledge  thus  acquired  believed  it  to  be  the  agent's  signature. 
This  was  sufficient  proof  of  the  due  execution  of  the  receipt.  *  *  * 
To  require  each  person  who  delivers  property  to  such  an  agent  to 
prove  the  signature  to  receipts  by  some  person  who  saw  them  exe- 
cuted, would  be  practically  impossible  after  the  lapse  of  a  few  days 
or  weeks.  If  the  fact  is  established  to  the  satisfaction  of  a  jury  that 
the  receipt  is  signed  by  an  agent  of  the  company,  held  out  by  it,  as 
having  authority  to  bind  it,  it  is  enough,  however  that  fact  may  be 
proved,  if  proved  by  legal  evidence." 

McMa/rtin  <&  Williams,  for  the  appellants  Edmund  B.  Wynn* 
for  the  respondent. 

Opinion  by  MULLIN,  P.  J 

Present  —  MULLIN,  P.  J.,  SMITH  and  TALOOTT,  JJ. 

Order  affirmed. 


JEREMIAH  TOOLEY,  APPELLANT,  v.  CHLOE  G.  BACON,  AS 
ADMINISTRATRIX  OF  THB  ESTATE  OF  CHARLES  C.  BACON", 
DECEASED. 

Party  to  transaction  —  cannot  testify  at  to  intention  with,  which  act  was  done  —  at 
against  the  legal  representatives  of  other  party —  Code,  §  399. 

APPEAL  from  a  judgment,  entered  upon  the  report  of  a  referee, 
dismissing  the  plaintiff's  complaint. 

The  action  was  brought  to  recover  of  Charles  C.  Bacon  the  sum 
of  $5,847  and  interest  from  April  15,  1865,  and  costs,  as  a  balance 
alleged  to  have  been  due  at  that  date  for  moneys  theretofore  received 
by  said  Bacon  for  the  use  and  benefit  of  plaintiff.  Charles  C 


TOOLEY  v.  BACON.  177 

POUBTH  DEPARTMENT,  Jmra  TERM,  1876. 

Bacon  died  and  the  defendant,  as  hi«  administratrix,  was  substi- 
tuted as  defendant  in  his  stead.  On  the  trial  the  plaintiff  was 
examined  as  a  witness  in  his  own  behalf,  and  was  asked,  whether 
he  put  any  property  into  the  hands  of  the  intestate  for  the  purpose 
of  defrauding  his  creditors,  or  with  that  intent.  The  defendant's 
counsel  objected  to  the  question  and  the  referee  sustained  the  objec- 
tion and  rejected  the  question. 

The  court  at  General  Term  say :  u  The  transfer  of  property 
from  plaintiff  to  the  intestate  being  assailed  as  fraudulent, 
it  was  competent  to  ask  the  witness  whether  the  transfer  to  the 
;ntestate  was  made  with  intent  to  defraud  the  creditors  of  the 
plaintiff,  unless  the  plaintiff  was  prohibited  from  testifying  by 
section  399  of  the  Code,  as  it  involved  a  transaction  between  him 
and  the  intestate. 

The  intent  with  which  the  transfers  were  made  is  a  mere  mental 
operation,  and  cannot  strictly  be  called  a  personal  transaction  or 
communication  between  the  intestate  and  the  witness.  But  when 
the  intent  with  which  an  act  is  done  becomes  the  subject  of  legal 
inquiry,  it  is  then,  it  seems  to  me,  to  be  treated  as  a  part  of  the 
act,  and  a  party  to  the  transaction  cannot  testify  as  to  the  intention 
with  which  it  was  done  in  an  action  between  him  and  the  repre- 
sentatives of  the  other  party  to  such  transaction. 

The  reasons  which  induced  the  legislature  to  exclude  the  evi- 
dence of  a  party  to  a  transaction  when  the  other  party  to  it  is  dead, 
apply  in  all  their  force  to  evidence  of  the  intention  with  which  an 
act  is  done,  as  proof  of  the  act  itself." 

Scott  Lord)  for  the  appellant.     E.  H.  Lamb,  for  the  respondept. 

Opinion  by  MULLIN,  P.  J. 

Present  —  MULLIN,  P.  J.,  SMITH  and  TALOOTT,  JJ. 

Order  of  Special  Term  affirmed,  with  ten  dollars  costs  and  dis- 
bursements. 

HUN— VOL.  VIIL        23 


178      PEOPLE  EX  REL.  R.,  W.  &  0.  R.  R.  CO.  u.  D1XON. 
FOUKTH  DEPARTMENT,  JUNE  TEKM,  1876. 


THE  PEOPLE  EX  EEL.  THE  ROME,  WATERTOWN  AND 
OGDENSBURGH  RAILROAD  COMPANY,  APPELLANT^ 
v.  WILLIAM  B.  DIXON,  SUPERVISOR,  AND  WILLIAM  F. 
AUSTIN  AND  OTHERS,  ASSESSORS  OF  THE  TOWN  OF  RlOHI  AND, 
OSWEGO  COUNTY,  RESPONDENTS. 

THE   SAME  v.   THE   SAME   OFFICERS  OF   THE  TOWN  OF 

ALBION,   IN   SAME    COUNTY. 

THE   SAME  v.  THE   SAME   OFFICERS  OF  THE   TOWN  OF 
SANDY   CREEK,  m  SAME  COUNTY. 

Assessment  —  eerUorari  to  review  —  where  property  is  generally  assessed  at  one-third 
its  value,  in  violation  of  the  assessors'  duty  —  court  will  not  reduce  assessment  of 
property  assessed  at  a  greater  rate,  to  same  proportion. 

APPEAL  from  an  order  of  the  Special  Term  of  Oneida  county, 
dismissing  writs  of  certiorari  in  the  above  entitled  causes. 

In  the  classified  list,  delivered  by  the  relators  to  the  assessors  of 
the  town  of  Richland,  pursuant  to  the  provisions  of  section  24 
of  the  act  entitled  "An  act  to  amend  chapter  13  of  the  first  part 
of  the  Revised  Statutes,  entitled  'Of  assessments  and  collection 
of  taxes '  "  (chap.  176  of  the  Laws  of  1851),  the  relators,  in  and  by 
the  affidavit  of  their  tax  agent,  stated  the  true  present  value  of  the 
property  owned  by  them  in  said  town  at  $24,080.  In  section  5  of 
the  act  of  1851  (chap.  176),  it  is  declared  that  all  real  and  per- 
sonal estate  liable  to  taxation  shall  be  estimated  and  assessed  by 
the  assessors  at  its  full  and  true  value,  as  they  would  appraise  the 
game  in  payment  of  a  just  debt  due  from  a  solvent  debtor.  In  the 
assessment  roll  made  and  duly  verified  by  the  assessors  of  the  said 
town  of  Richland  they  assessed  the  property  of  the  said  relators  in 
said  town  of  Richland  liable  to  taxation  at  the  sum  of  $17,500, 
being  $6,580  less  than  they  were  liable  to  be  assessed,  upon  their 
own  estimate  of  the  value  of  their  real  property  in  said  town. 

In  the  return  of  the  said  assessors,  they  "  say  and  aver  that  the 
true  and  accurate  value  of  the  real  estate  of  the  said  relators  in  the 
said  town  of  Richland,  at  the  time  of  said  assessment,  was  $52,500, 
and  that  they  assessed  said  real  estate  of  said  relators  in  said  town 


PEOPLE  EX  BEL.  R.,  W.  &  O.  R.  R.  CO.  v.  DIXON.      179 
FOURTH  DEPARTMENT,  JUNE  TERM,  1876. 

at  one-third  part  of  its  true  value,  as  they  did  all  other  property  in 
said  town." 

The  relators  claimed  that  their  property  should  have  been 
entered  upon  said  assessment  roll  at  one-third  its  actual  value,  and 
that  the  assessment  roll  should  be  corrected  by  reducing  the  amount 
accordingly,  adopting  their  own  estimate  of  such  value  as  proved 
before  the  said  assessors,  and  not  disproved  by  any  proper  evidence. 

The  court  at  General  Term  say :  "  We  are  thus  asked  to  sanction 
the  illegal  acts  of  these  assessors  in  disobeying  the  express  command 
of  the  statute,  to  assess  the  property  of  said  town  at  its  full  and  true 
value,  as  they  would  appraise  the  same  in  payment  of  a  just  debt 
due  from  a  solvent  debtor;  and  instead  thereof  assessing  such  prop- 
erty at  one-third  its  admitted  estimated  value,  followed  by  a  verifi- 
cation by  said  assessors  annexed  to  said  roll,  that  such  was  the  true 
and  full  value  of  the  property  therein  assessed,  and  this  is  the  only 
relief  asked  by  the  relators  from  the  court  upon  these  several  writs 
of  certiorari. 

"  This  is  certainly  a  bold  proposition  or  request  addressed  to  this 
court,  and  one  which  we  must  most  necessarily  reject.  We  cannot 
sanction  in  any  manner  the  great  indecorum,  to  say  the  least,  of 
these  proceedings  on  the  part  of  these  assessors. 

"As  the  only  injury  complained  of  is  not  a  legal  injury,  and  this 
relator  is  not  in  fact  assessed  for  more  than  the  admitted  value  of 
its  property  by  its  own  witnesses  and  agents,  and  its  only  complaint 
is,  really,  that  other  parties  not  before  us,  or  parties  to  this  proceed- 
ing, are  not  assessed  at  the  same  rate  with  itself,  and  the  relief  it 
asks  is  utterly  inadmissible,  it  only  remains  for  us  to  affirm  the 
decision  of  the  court  at  Special  Term  in  dismissing  said  writ,  with 
costs." 

L.  J.  Darwin,  for  the  appellants.  S.  C.  Huntington,  for  the 
respondents. 

Opinion  by  SMITH,  J. 

Present  —  MULLIN,  P.  J.,  SMITH  and  TALOOTT,  JJ. 

Order  of  Special  Term  dismissing  writ  of  certiorari  affirmed, 
with  costs. 

(Like  order  in  the  three  cases.) 


DETERMINED   IN  THE 


AT 


GENERAL     TERM, 
,  1876. 


ROBERT  Y.  MACKEY,  RESPONDENT,  v.  CHARLES  B.  AUER, 

APPELLANT. 

Demurrer  —  when  the  facts  alleged  justify  any  relief —  though  not  the  relief  asked 
for  —  will  -not  be  sustained. 

A  complaint  alleged  a  partnership  between  plaintiff  and  defendant;  its  dissolu- 
tion; an  accounting;  a  certain  sum  found  due  plaintiff;  a  demand  therefor  and 
refusal  to  pay,  and  asked  judgment  for  the  amount.  Held,  not  to  be  demurrable, 
although  no  promise  to  pay  the  amount  was  alleged. 

It  is  not  sufficient  to  show  that  the  relief  upon  certain  facts  could  not  be  that  sub- 
sequently asked  for  by  the  complaint ;  it  must  be  shown  that,  upon  the  facts 
alleged,  the  plaintiff  would  not  be  entitled  to  auy  relief  at  the  hands  of  the 
court,  for  the  legal  or  equitable  powers  of  the  court  are  not  necessarily  con- 
trolled by  the  prayer  for  relief  which  the  plaintiff  adopts,  although  the  relief, 
where  no  answer  is  interposed,  cannot  go  beyond  such  prayer. 

A  cause  of  action  in  the  Code  means  any  cause  of  action. 

APPEAL  from  an  order  made  at  Special  Term  overruling  a  demur- 
rer to  the  complaint,  setting  up  that  it  did  not  state  facts  sufficient 
to  constitute  a  cause  of  action.  The  complaint  set  forth  that  May  2, 
1872,  the  plaintiff  and  defendant  entered  into  a  copartnership  and 
continued  the  same  until  July  23,  1873,  when  it  was  dissolved  by 
mutual  consent  of  the  parties  ;  that  on  said  last  mentioned  daj 
they  had  an  accounting  of  all  matters  of  said  copartnership,  and  an 
account  therefor  was  duly  stated  between  them,  and  that  thereupon 


MACKEY  v.  AUER.  181 


FIRST  DEPARTMENT,  JULY  TERM,  1876. 


it  appeared,  and  the  fact  was  the  defendant  stood  and  was  indebted 
to  the  plaintiff  in  the  sum  of  $1,032.89,  and  said  sum  was  on  said 
day  due  and  payable  from  the  defendant  to  the  plaintiff,  and  alleged 
the  neglect  and  refusal  of  the  defendant  to  pay  said  sum,  though 
often  requested,  and  demanded  judgment  for  said  sum,  with  interest 
and  costs. 

John  R.  Dos  Passos,  for  the  appellant.  The  complaint  does 
not  state  an  express,  or  any  promise  on  the  part  of  the  defendant 
to  pay  the  demand.  The  rule  is  well  settled  in  this  State,  that  no 
suit  can  be  brought  at  law  for  any  thing  relating  to  partnership 
concerns,  unless  there  has  been  a  final  accounting,  a  balance  struck, 
and  an  express  promise.  (Casey  v.  Brush,  2  Caines,  293  ;  Murray 
v.  Bogert,  14  Johns.,  318 ;  Halstead  v.  Sehioetsel,  17  id.,  80  ;  West- 
erlo  v.  Evertson,  1  Wend.,  532 ;  Clark  v.  Dibble,  16  Wend.,  601  ; 
Townsend  v.  Goewey,  19  id.,  424 ;  Graham  v.  Gammon,  13  How. 
Pr.,  360 ;  Atwater  v.  Fowler,  1  Hall,  180 ;  Koehler  v.  Brown,  31 
How.,  235;  Pattison  v.  Blanchard,  6  Barb.,  53T;  affirmed  in  1 
Selden,  186  ;  Cummings  v.  Morris,  25  N.  Y.,  629 ;  Howard  v. 
France,  43  id.,  593 ;  Crater  v.  Bininger,  45  id.,  545  ;  Gaqe  v. 
Angell,  8  How.  Pr.,  335,  336.) 

Hamilton  Cole,  for  the  respondent.  Where  a  partnership  has 
been  dissolved  and  an  account  stated,  an  action  at  law  will  lie  with- 
out an  express  promise  to  pay.  (Rackstraw  v.  Imber,  1  Holt's 
N.  P.,  368 ;  Wetmore  v.  Baker,  9  Johns.,  307 ;  Bond  v.  Hays,  12 
Mass.,  34 ;  Crosby  v.  Nichols,  3  Bosw.,  450 ;  Atwater  v.  Fowler, 
1  Hall,  180 ;  Poison  v.  Curtiss,  1  Starkie's  N.  P.,  78 ;  Veeney  v. 
Leekw,  13  East,  7;  Halderman  v.  Halderman,  1  Hemp.  [Ark.], 
559  ;  Van  Ness  v.  Forrest,  8  Cranch,  30 ;  Pole  v.  Phillips,  5  id.,  154, 
opin.  of  ORANCH,  Ch.  J. ;  Lamalere  v.  Case,  1  Wash.  C.  Ct.,  433  ; 
Beach  v.  Hotchkiss,  2  Conn.,  428  ;  Fanning  v.  Chadwick,  3  Pick., 
420,  and  all  the  Mass,  cases;  Ozeas  v.  Johnson,  1  Binney,  191, 
and  other  Penn.  cases;  Orisby  v.  Nance,  3  Ala.,  347;  13  id.,  214 
and  the  Ala.  cases ;  Fromont  v.  Copeland,  2  Bing.,  170 ;  Collyer 
on  Part.  [3d  ed.],  §  280 ;  Pars,  on  Conts.,  165.)  To  sustain  the 
demurrer  amounts  to  a  summary  dismissal  of  the  complaint.  But 
the  complaint  cannot  be  dismissed  if  it  states  any  cause  of  acticu 


182  MACKEY  u.  AUER. 

FIRST  DEPARTMENT,  JULY  TERM,  1876. 

legal  or  equitable.     The  demand  for  judgment  and  the  form  oi 
complaint  is  immaterial. 

DAVIS,  P.  J. : 

The  complaint  alleges  that  on  the  2d  day  of  May,  1872,  the 
plaintiff  and  defendant  entered  into  a  copartnership,  and  carried 
on  the  business  of  manufacturing  hair  ribbons  under  the  name  of 
C.  B.  Auer  &  Co.,  and  continued  such  partnership  and  business  till 
the  23d  day  of  July,  1873,  when  the  firm  was  dissolved  by  mutual 
consent  of  the  parties  ;  that  on  said  twenty-third  of  July,  the  plain- 
tiff and  defendant  came  to  and  had  an  accounting  of  all  matters 
and  transactions  before  that  time  had  between  them  in  said  copart- 
nership, and  an  account  therefor  was  duly  stated  between  the  plain- 
tiff and  defendant,  and  thereupon  it  appeared  and  tho  fact  was, 
that  said  defendant  stood  and  was  indebted  to  the  plaintiff  in  the 
sum  of  $1,032.89,  and  that  said  sum  was  on  said  23d  of  July,  1873, 
due  and  payable  from  the  defendant  to  the  plaintiff.  It  then 
alleges  the  neglect  and  refusal  of  the  defendant  to  pay  said  sum, 
though  often  requested,  and  demands  judgment  for  the  amount 
named,  with  interest  and  costs. 

To  this  complaint  the  defendant  demurs,  upon  the  ground  that 
the  complaint  does  not  state  facts  sufficient  to  constitute  a  cause  of 
action.  It  is  claimed,  on  the  part  of  the  appellant,  that  the  objec- 
tion is  well  taken,  because  no  express  promise  to  pay  the  amount 
found  due  upon  the  accounting  between  the  copartners  is  alleged. 
If  this  point  would  have  been  well  taken  in  an  action  at  law  under 
our  former  system  (which  it  is  not  necessary  to  consider),  yet  it 
seems  clear,  upon  authority,  that  it  is  not  well  taken  now.  The 
distinction  between  actions  at  law  and  suits  in  equity,  as  they 
formerly  existed,  no  longer  prevails.  All  remedies  in  courts  of 
justice,  whether  legal  or  equitable  in  their  character,  are  to  be 
sought  by  actions  or  by  special  proceedings ;  and  it  is  only  necessary, 
therefore,  that  the  complaint  should  contain  facts  sufficient  to  call 
upon  the  court  to  grant  relief  to  the  plaintiff,  by  the  exercise  of 
either  its  legal  or  equitable  powers ;  and  those  powers  are  not  neces- 
sarily controlled  by  the  prayer  for  relief  which  the  plaintiff  adopts, 
although  the  relief  cannot,  where  no  answer  is  interposed,  go  beyond 
such  prayer.  It  follows,  therefore,  that  whenever  the  complaint 


MACKEY  v.  AUER.  188 


FIRST  DEPARTMENT,  JULY  TERM,  1876. 


contains  allegations  of  fact,  which  if  proved  upon  a  trial  after  issue 
of  fact  joined  would  entitle  the  plaintiff  to  some  relief,  either  legal 
or  equitable,  a  demurrer  on  the  ground  that  the  complaint  does  not 
state  facts  sufficient  to  constitute  a  cause  of  action  will  not  be 
upheld.  The  defendant  cannot  demur  to  the  prayer  for  relief.  He 
must  demur  to  the  facts  alleged  ;  and,  to  sustain  his  demurrer,  he 
must  show  that  upon  those  facts  the  plaintiff  cannot  have  any  relief 
at  the  hands  of  the  court ;  and  it  is  not  sufficient  for  him  to  show 
that  the  relief  upon  such  facts  could  not  be  that  asked  for  by  the 
complaint.  The  right  to  demur  is  not  given  by  the  Code,  on  the 
ground  that  the  complaint  does  not  state  facts  sufficient  to  entitle 
the  plaintiff  to  the  relief  demanded  therein ;  but  on  the  ground 
that  the  complaint  does  not  state  facts  sufficient  to  constitute  a 
cause  of  action  —  that  is,  any  cause  of  action. 

Bringing  the  complaint  in  this  action  to  this  test,  it  seems  to  us 
clear  that  the  facts  stated  would,  if  proven  upon  the  trial  upon  issue 
of  fact  joined,  entitle  the  plaintiff  to  relief.  They  show  that  a 
partnership  was  formed  at  a  specified  time,  and  in  a  specified  busi- 
ness, between  the  parties  to  this  action  ;  that  the  partnership  and 
business  continued  to  a  specified  time ;  that  then,  by  mutual  consent 
of  the  parties,  the  partnership  was  dissolved,  and  that  at  the  time 
of  the  dissolution  an  accounting  took  place  between  the  plaintiff 
and  defendant  of  all  matters  and  transactions  before  that  time  had 
in  said  copartnership,  and  that  an  account  was  stated  between  them 
upon  which  it  appeared,  and  the  fact  was,  that  the  defendant  stood 
indebted  to  the  plaintiff  in  the  sum  of  $1,032.89  ;  and  that  that 
sum  was,  on  the  23d  of  July,  1873,  due  and  payable  from  the 
defendant  to  the  plaintiff,  and  that  the  defendant  had  neglected, 
though  often  requested,  to  pay  it.  If  the  plaintiff  had  appended 
to  these  facts,  as  the  relief  demanded,  a  prayer  that  the  alleged 
accounting  between  plaintiff  and  defendant  be  adjudged  final,  and 
that  defendant  be  decreed  to  pay  to  the  plaintiff  the  sura  found  due 
upon  such  accounting,  there  would  seem  to  be  no  doubt,  that  facts 
constituting  a  cause  of  action  to  which  such  relief  would  be  appli- 
cable are  sufficiently  stated  in  the  complaint.  Hence  it  follows, 
that  unless  we  are  to  uphold  demurrers  of  this  kind  because  of  the 
form  of  the  prayer,  or  unless  we  are  to  fall  back  upon  the  rigid 
rules  and  technicalities  of  strict  actions  at  law  under  the  forme* 


184  MACKEY  v.  AUER 

FIRST  DEPARTMENT,  JULY  TERM,  1876. 

system,  when  suits  in  equity  and  actions  at  law  had  no  common 
but  separate  and  independent  tribunals,  the  demurrer  in  this  case 
cannot  be  upheld.  These  views  are  sustained  in  principle,  we 
think,  by  the  judgment  of  the  Court  of  Appeals  in  Emery  v. 
Pease  (20  N.  Y.,  62),  in  which  it  is  said  that,  "  in  determining 
whether  an  action  will  lie,  courts  are  to  have  no  regard  to  the  old 
distinction  between  legal  and  equitable  remedies.  Those  distinc- 
tions are  expressly  abolished  by  section  69.  The  suit  does  not,  as 
formerly,  fail  because  the  plaintiff  has  made  a  mistake  as  to  the 
form  of  the  remedy.  If  the  case  which  he  states  entitles  him  to 
any  remedy,  whether  legal  or  equitable,  his  complaint  is  not  to  be 
dismissed  because  he  has  prayed  for  a  judgment  to  which  he  is  not 
entitled."  And  in  Johnson  v.  Kelly  (9  N.  Y.  S  C.  [2  Hun],  139), 
where  a  demurrer  like  that  in  this  case  was  overruled,  notwith- 
standing the  fact  that  the  demand  for  judgment  was  for  a  specific 
amount,  with  interest  and  costs.  The  complaint  in  that  case  could 
very  clearly  not  have  been  upheld  on  demurrer,  in  an  action  at  law 
under  the  former  system. 

For  these  reasons,  and  without  considering  the  questions  so  ably 
and  elaborately  discussed  by  the  learned  counsel  for  the  appellant, 
as  to  whether  the  complaint  in  this  case  would  have  been  good  in 
an  action  at  law  under  the  former  system,  or  whether  it  is  now 
good  for  the  reasons  stated  by  the  learned  judge  in  the  court  below, 
we  are  of  opinion  that  the  demurrer  was  properly  overruled,  and 
the  order  should  be  affirmed  with  costs,  and  with  leave  to  the 
defendant  to  answer  over  in  twenty  days  on  the  usual  terms. 

BRADY  and  DANIELS,  JJ.,  concurred. 

Order  affirmed  with  costs,  with  leave  to  defendant  to  answer  over 
IB  twenty  days  on  the  usual  terms. 


ROSS  v.  WOOD.  185 


FIRST  DEPARTMENT,  JULY  TERM,  1876. 


PETER  B.  ROSS,  APPELLANT,  v.  SARAH  WOOD  AND  OTHEKS, 

RESPONDENTS. 

Practice — Perjury  in  a  former  suit  —  not  ground  for  bringing  another  action,  to  retry 
t'ke,  same  issues  —  Remedy. 

Issues  tried  in  a  former  suit  cannot  be  retried  in  another  between  the  same  parties, 
upon  allegations  that  one  of  the  parties  thereto,  and  her  witnesses,  conspired 
together  to  and  did  commit  perjury  hi  the  former,  by  means  of  which  a  verdict 
and  judgment  were  had  against  the  present  plaintiff,  then  defendant 

The  proper  course  for  the  aggrieved  party  to  pursue  is  to  apply  for  relief  in  the 
action  itself,  by  a  motion  for  a  new  trial  on  the  ground  of  surprise  or  newly 
discovered  evidence,  or  other  matter  out  of  which  his  claim  for  relief  arises. 

To  obtain  relief  by  an  independent  action  in  a  court  of  equity  against  a  judg- 
ment obtained  through  fraud  and  crime,  it  must  appear  that  the  party  had  no 
remedy  at  law  in  the  action,  and  that  there  had  been  no  fnult  or  negligence  on 
his  part.  A  failure  to  promptly  apply  for  appropriate  relief  in  the  action 
would  be  negligence;  and  that  an  application  had  been  made  without  success, 
would  afford  no  ground  for  a  substantial  review  of  such  action,  in  another  suit 
in  a  different  court. 

APPEAL  from  a  judgment  in  favor  of  the  defendant,  entered  on 
a  demurrer  to  the  plaintiff's  complaint  setting  up  that  it  did  not 
state  facts  sufficient  to  constitute  a  cause  of  action,  by  direction  of 
the  justice  at  Special  Term. 

The  complaint  alleged  that,  on  the  17th  of  October,  1867,  the 
plaintiff  purchased  of  one  George  W.  Smith  sixteen  lots  of  ground, 
for  the  sum  of  $2,100,  and  for  certain  reasons  deemed  it  prudent 
and  judicious  to  have  the  deed  therefor  made  to  Sarah  Wood  as 
grantee.  That  plaintiff  paid  $1,500  on  the  purchase,  and  procured 
the  said  Sarah  Wood  to  execute  a  bond  and  mortgage  to  Smith,  for 
the  balance  of  the  purchase  money.  That  afterward,  being  in  a 
condition  to  hold  title  to  real  estate,  he  asked  the  said  Sarah  Wood 
to  release  or  quit-claim  the  said  premises  to  him,  which  she  freely 
and  voluntarily  did,  on  the  29th  of  July,  1869.  That  she  never 
had,  and  did  not  then  claim  or  pretend  to  have,  any  title  to,  or  interest 
in  the  same.  That  after  receiving  the  said  deed  from  Wood,  and 
having  the  same  recorded,  the  said  Wood  then  for  the  first  time 
asserted  or  pretended  any  claim  to  said  real  estate.  That  on  the 
23d  of  September,  1869,  she  commenced  an  action  against  him.  in 
HUN— VOL.  VIII.  24 


186  ROSS  v.  WOOD. 


FIRST  DEPARTMENT,  JITLY  TERM,  1876. 


the  City  Court  of  Brooklyn,  to  set  aside  her  deed  to  this  plaintiff 
as  fraudulent  and  void  and  as  a  forgery,  alleging  that  she  never 
executed  the  same,  to  which  this  plaintiff  interposed  an  answer. 
That  said  action  was  tried  before  said  court  and  a  jury,  and 
thereon  the  said  Sarah  Wood  falsely  testified  that  the  plaintiff 
acted  as  her  attorney  in  the  transaction,  and  purchased  the  lots 
from  Smith  for  her;  that  she  never  executed  the  deed  to  this  plain- 
tiff, and  to  various  other  false  facts,  and  produced  as  witnesses  in 
her  behalf  her  mother,  Nancy  Carpenter,  her  sister  Emma  Carpen- 
ter, her  brother  George  W.  Carpenter,  and  her  daughter  Henrietta 
Wood,  each  of  whom  gave  material  evidence  on  said  trial  in  her 
favor,  and  which  evidence  was,  in  all  its  material  parts,  corruptly  and 
feloniously  false,  and  well  known  to  the  said  Sarah  Wood  to  be 
false  and  untrue  when  she  produced  the  same  in  her  behalf  on  said 
trial,  and  that  her  own  evidence,  and  that  she  produced,  was  for  the 
purpose  of  imposing  upon  and  misleading  said  court  and  jury,  and 
fraudulently  and  corruptly  thereby  to  obtain  a  decision  in  her  favor 
on  said  trial,  and  by  that  means  to  cheat  this  plaintiff,  then  defend- 
ant on  said  trial,  out  of  his  money  and  property.  The  complaint 
further  set  forth  wherein  such  testimony  was  false,  and  alleged  that, 
in  consequence  and  by  reason  of  said  perjuries,  the  jury  found  a 
verdict  in  favor  of  said  Wood  on  said  trial,  and  the  court  thereupon 
rendered  judgment  setting  aside  the  deed  from  said  Wood  to  this 
plaintiff,  then  defendant,  and  affirming  the  title  of  said  Wood 
thereto,  to  his  injury.  That  the  defendants  in  this  action,  O'Brien, 
Winkler  and  Perez,  were  grantees,  subsequent  to  the  trial,  of  the 
premises,  and  well  knew  of  it  and  all  the  proceedings  thereon,  and 
that  the  verdict  therein  was  obtained  by  willful  and  corrupt  per- 
jury; and  the  plaintiff  demanded  judgment  that  said  fraud  and 
perjuries  might  be  inquired  into  and  investigated  by  the  court,  and 
that  said  judgment  and  adjudication  might  be  reviewed  by  the 
court,  and  be  annulled  and  canceled  and  set  aside  as  having  been 
obtained  by  fraud  and  perjury  of  said  Wood  and  her  witnesses,  and 
that  the  plaintiff's  title  to  said  premises  might  be  affirmed  and  held 
good  and  effectual,  and  that  the  pretended  title  of  O'Brien,  Wink- 
ler and  Perez  be  set  aside  as  fraudulent  and  a  cloud  upon  plaintiffs 
title,  and  for  such  other  relief  as  the  court  may  be  pleased  tc 
grant. 


ROSS  v.   WOOD.  187 


FIRST  DEPARTMENT,  JULY  TERM,  1876. 


L.  S.  Chatfield,  for  the  appellant. 
Rufus  L.  Scott,  for  the  respondents. 

DAVIS,  P.  J. : 

The  question  on  this  demurrer  is,  whether  the  issues  tried  in  a 
former  suit,  commenced  by  Sarah  "Wood  against  the  present  appel- 
lant, can  be  retried  in  this  action  upon  allegations  that  the  then  plain- 
tiff, Sarah  Wood,  and  her  witnesses  named  in  the  complaint  in  this 
action,  conspired  together  to  commit  and  did  commit  perjury  on 
the  former  trial,  by  means  of  which  a  verdict  and  judgment  in  that 
action  were  obtained  in  her  favor.  The  issue  in  the  former  action 
was  tried  before  the  court  and  a  jury  in  due  form,  and  contested  by 
the  appellant ;  and  no  fraud  is  alleged  to  have  been  practiced  upon 
that  tribunal  in  any  of  the  proceedings  in  the  action  or  in  obtaining 
the  verdict  and  judgment,  other  than  is  contained  in  the  allegation 
that  the  witnesses  named  in  the  complaint  testified  corruptly  and 
falsely  on  the  material  issues. 

If  this  action  can  be  maintained  to  retry  the  issue  upon  such 
allegations,  there  can  be  of  course  no  end  to  litigation.  Nothing 
will  hinder  the  defendants  in  this  action,  if  the  plaintiff  shall  chance 
to  succeed,  from  filing  their  complaint  alleging  the  perjury  of  the 
plaintiff  and  his  witnesses  as  the  reason  of  his  success,  and  from 
obtaining  a  retrial  of  the  same  issue  upon  the  ground  of  such  per- 
jury. And  so,  whichever  party  shall  be  defeated  in  the  successive 
experiments,  the  other  will  be  at  liberty  to  return  to  the  charge 
ad  infinitum,  till  death,  exhaustion,  or  failure  of  issue  or  of  legal 
representatives  shall  terminate  the  struggle.  The  remedy  of  plain- 
tiff must  be  sought  by  direct  proceedings  in  the  former  action  and 
not  by  a  collateral  suit  in  another  court,  in  which  the  issue  tend- 
ered is  the  perjury  of  witnesses  on  the  trial  of  such  former  action. 

The  court  below,  on  deciding  the  demurrer,  pronounced  the 
following  opinion : 

"  VAN  VORST,  J.  It  is  true,  as  is  argued  by  the  learned  counsel 
for  the  plaintiff,  that  a  judgment  may  be  questioned  on  the  ground 
that  it  was  obtained  through  fraud,  contrivance  or  crime  of  any 
description.  As  was  said  by  ALLEN,  J.,  in  Dobson  v.  Pearce  (2 
Kern.,  165) : 


188  ROSS  v.  WOOD. 


FIRST  DEPARTMENT,  JULY  TBUM,  1876. 


'Any  fact  which  clearly  proves  it  to  be  against  conscience  to 
execute  a  judgment,  and  of  which  the  injured  party  could  not  avail 
himself  at  law,  but  was  prevented  by  fraud  or  accident,  unmixed 
with  any  fault  or  negligence  in  himself  or  his  agents,  will  justify 
an  interference  by  a  court  of  equity.' 

The  judgment  of  which  complaint  is  made  in  this  action,  and 
which  it  is  asked  '  may  be  anulled,  canceled  and  set  aside '  as 
having  been  obtained  by  fraud  and  perjury,  was  recovered  in  an 
action  in  the  City  Court  of  the  city  of  Brooklyn,  after  a  trial  of  the 
issues  therein  upon  the  merits,  and  was  entered  upon  the  verdict  of 
the  jury  impanelled  to  try  the  same. 

While  the  maxims  of  the  law  evidently  forbid  the  review  of 
the  proceedings,  verdict  and  judgment  in  that  action  by  an  inde- 
pendent proceeding  originating  in  another  court,  no  authority  is 
adduced  which  would  justify  such  steps  upon  the  allegations  of  the 
complaint  herein. 

In  a  case  of  the  character  above  named,  when  a  trial  has  been 
had,  and  an  adverse  result  has  been  produced  through  a  fraudulent 
conspiracy  and  perjury,  the  proper  course  for  the  aggrieved  party 
to  adopt  is  to  apply  for  relief  in  the  action  itself  by  a  motion  for  a 
new  trial  on  the  grounds  of  surprise  or  newly  discovered  evidence, 
or  other  matter,  out  of  which  his  claim  for  relief  arises,  and  courts 
are  ever  ready  to  grant  relief  in  the  action  upon  proper  cause  shown. 
But  it  is  argued  by  the  counsel  for  the  plaintiff,  that  the  demurrer 
interposed  by  the  defendant  is  an  admission  that  the  verdict  and 
judgment  was  obtained  through  fraud  and  perjury,  and  upon  such 
admission  the  complaint  should  be  held  sufficient  to  support  this 
action. 

But  it  must  appear,  in  order  to  obtain  relief  by  an  independent 
action  in  a  court  of  equity  against  a  judgment  obtained  through 
fraud  and  crime,  that  the  party  had  no  remedy  at  law  in  the  action, 
and  that  there  had  been  no  fault  or  negligence  on  his  part.  A  failure 
to  promptly  apply  for  appropriate  relief  in  the  action  itself  would 
be  negligence ;  and  that  an  application  had  been  made  without 
success,  would  afford  no  reason  for  a  substantial  review  of  such 
action  in  another  suit  in  a  different  court. 

But  again,  there  are  certain  well  grounded  and  accepted  pre- 
iumptionB,  in  the  light  of  which  the  allegations  in  this  complaint 


WILLS  t».  SIMMONDS.  189 

FIRST  DEPARTMENT,  JULY  TERM,  1876. 

must  be  considered,  and  which,  in  view  of  what  is  sought  to  be 
accomplished  by  this  action,  must  control.  Among  these  presump- 
tions are  the  following :  That  the  decisions  of  a  court  of  competent 
jurisdiction  are  well  founded,  and  that  facts,  without  proof  of 
which  the  verdict  could  not  have  been  found,  were  proved  on  the 
trial.  Furthermore,  that  the  testimony  which  justified  that  jury 
in  finding  that  verdict  was  true. 

The  law  presumes  honesty  against  fraud,  and  will  presume 
that  a  witness  has  not  perjured  himself.  (Broom's  Legal  Maxims, 
908-912.) 

"And  these  presumptions  are  not  to  be  overcome  otherwise  than 
by  effective  evidence,  produced  and  applied  in  appropriate  reme- 
dies sanctioned  by  the  rules  of  law,  and  the  methods  of  procedure 
in  judicial  tribunals. 

There  should  be  judgment  for  defendant  on  the  demurrer,  on 
the  ground  that  the  complaint  does  not  set  forth  facts  sufficient  to 
establish  a  cause  of  action." 

We  adopt  this  opinion  as  a  correct  exposition  of  the  law. 

The  judgment  should  be  affirmed. 

BEADY  and  DANIELS,  JJ.,  concurred. 
Judgment  affirmed. 


BTTFUS  A.  WILLS  AND  OTHERS,  APPELLANTS,  v.  HENRY 

SIMMONDS    AND   OTHERS,    APPELLANTS. 

( No.  2. ) 
RUFUS  A.  WILLS  AND  OTHERS,  RESPONDENTS,  v.  HENRY 

SIMMONDS    AND   OTHERS,    APPELLANTS. 

Partners  —  Action  by  one  against  anot/ier,  but  not  against  all — when  maintainable  — 
Contract  —  refusal  to  perform  —  creates  present  breach  of. 

Although  the  partnership  relation  may  exist  between  parties,  the  court  has  juris- 
diction to  entertain  a  suit  at  law,  brought  by  one  against  only  one  of  the 
several  other  partners  for  damages,  where  the  action  involves  an  inquiry  only 
with  respect  to  the  damages  which  the  plaintiff  has  sustained  solely  because 
of  an  alleged  breach  of  the  partnership  agreement  by  the  defendant. 


190  WILLS  v.  SIMMONDS. 

FIRST  DEPARTMENT,  JULY  TERM,  1876. 

Where  the  particular  controversy  caii  be  completely  determined  without  preju- 
dice to  the  rights  of  the  parties  not  made  defendants,  they  are  not  necessary 
parties  thereto. 

Where  parties  who  were  bound  by  an  agreement  to  accept  certain  bills  ot 
exchange  to  pay  for  goods  purchased,  declare  in  advance  that  they  will  nut  do 
so,  such  declaration  of  their  intention  not  to  perform  their  contract,  is  a  broach 
thereof,  and  upon  the  occurrence  of  the  breach  a  cause  of  action  exists  at 
once  against  them,  whether  the  goods  were  at  hand  and  delivered  or  to  arrive, 
the  damages  therefor  depending  upon  the  facts  to  be  established  upon  the 
trial 

APPEALS  from  an  order  made  at  Special  Term  in  suit  No.  1,  on 
the  part  of  the  plaintiffs,  fro:u  so  much  thereof  as  sustained  a 
demurrer  to  the  second  cause  of  action  set  forth  in  the  complaint ; 
on  the  part  of  the  defendant,  from  so  much  thereof  as  overruled 
the  demurrer  to  the  first  cause  of  action  set  forth  in  the  complaint. 

Appeal  by  the  defendant  from  an  order  made  at  the  same  Special 
Term  in  the  second  suit  overruling  a  demurrer  to  the  complaint. 

The  demurrer  to  both  causes  of  action  in  the  first  suit,  and  to 
the  cause  of  action  in  the  second,  were  alike,  and  were :  1st.  That 
there  was  a  defect  of  parties  defendant,  in  that  M.  Crocker  and 
James  Lee,  Jr.,  were  necessary  parties  defendant,  and  ought  to 
have  been  joined  as  such.  2d.  That  the  court  had  no  jurisdiction 
of  the  subject  of  the  action.  3d.  That  the  complaint  did  not  state 
facts  sufficient  to  constitute  a  cause  of  action. 

The  causes  of  action  in  both  suits  were  based  on  the  same  agree- 
ments. 

A  summons  for  relief  was  served  in  the  first  action,  brought  to 
recover  damages  against  the  defendants  for  refusing  to  comply 
with  the  terms  of  their  contract,  and  directing  other  parties  not  to 
comply. 

A  summons  for  money  in  the  second  action,  for  refusal  to  accept  a 
certain  bill  drawn  upon  them  in  pursuance  of  the  same  contracts. 

On  the  5i4th  day  of  May,  1873,  the  plaintiffs'  firm,  Wills, 
Edmands  &  Co.,  of  Boston,  entered  into  an  agreement  with  the 
defendants'  firm,  Simraonds,  Hunt  &  Co.,  of  London,  England,  in 
writing.  M.  Crocker  and  James  Lee,  Jr.,  were  also  parties  to  the 
agreement,  by  which  it  was,  among  other  things,  agreed  that  M. 
Crocker  &  Co.,  in  which  name  M.  Crocker  had  theretofore  carried 
on  business  in  Boston  as  a  crusher  and  manufacturer  of  linseed  oil 


WILLS  v.  SIMMONDS.  19] 

FIRST  DEPARTMENT,  JULY  TERM,  1876. 

but  in  which  he  had  become  embarrassed,  and  had  become  indebted 
to  the  other  parties  to  the  agreement,  should  go  on  and  manufac- 
ture seed  to  be  furnished  him  by  the  plaintiffs,  upon  orders  given 
by  Crocker  &  Co.,  to  be  filled  at  Calcutta  by  plaintiffs  at  regular 
Calcutta  commissions  therefor ;  the  seed  to  be  paid  for  by  credits 
on  London,  furnished  by  plaintiffs,  to  meet  which  costs  of  credit 
and  freight  duties,  insurance,  and  landing  charges,  and  commissions 
thereon  of  two  and  one-half  per  cent  gold  on  gross  gold  cost  in  Boston, 
plaintiffs  should  receive  from  Crocker,  upon  the  arrival  and  entry 
of  the  ship  at  the  custom-house,  one-third,  in  a  draft  in  sterling  for 
said  one-third,  drawn  by  M.  Crocker  &  Co.  upon  the  defendants' 
firm  in  London,  which  drafts  the  defendants  agreed  to  honor,  or,  at 
the  option  of  the  plaintiffs,  in  the  proceeds  of  such  drafts,  when 
sold  by  M.  Crocker  &  Co.,  one-third  in  gold  by  note  of  M.  Crocker 
&  Co.,  to  the  order  of  James  Lee,  Jr.,  and  indorsed  by  him,  and 
having  ninety  days  to  run  from  its  date,  and  the  remaining  one- 
third  in  gold  by  note  of  M.  Crocker  &  Co.,  to  the  order  of  plain- 
tiffs, or  to  the  order  of  M.  Crocker  &  Co.,  at  plaintiffs'  option,  and 
by  them  indorsed,  to  run  ninety  days  from  date,  interest  to  be 
charged  on  the  amount  of  Crocker's  and  Lee's  notes  in  the  accounts, 
to  be  made  up  as  theretofore  made  up  between  Crocker  &  Co.  and 
plaintiffs.  Plaintiffs  were  to  insure  the  importations  at  a  premium 
or  cost  to  M.  Crocker  &  Co.  of  three  per  cent,  but  not  to  assume 
any  liability,  the  insurance  being  effected  by  them  as  agents. 

It  was  also  agreed  that  all  linseed  cake  made  in  the  oil  mill  under 
the  agreement  should  be  shipped  to  the  defendants  in  London  by 
Crocker  &  Co.,  to  be  sold  in  the  usual  manner  on  consignment,  the 
account  sales  thereof  to  be  handed  to  Crocker  &  Co.,  and  at  end  of 
every  two  months,  in  case  the  shipments  of  cake  should  not  pro- 
duce an  amount  equal  to  the  sums  for  which  drafts  under  the  agree- 
ment should  have  been  drawn  on  defendants'  firm,  then  Crocker  & 
Co.  should  remit  to  defendants  good  bills  on  London  out  of  the 
proceeds  of  the  manufacture  of  the  mill,  for  the  deficit  or  differ- 
ence between  the  produce  of  the  cake  and  the  amount  oi  the  bills. 

Crocker  &  Co.  were  at  liberty  to  order  seed  to  the  extent  of 
4,000  bags  and  5,000  pockets  per  month,  which  would  enable  them 
to  run  daytime  only,  but  in  the  joint  discretion  of  Crocker  &  Co. 
and  the  plaintiffs,  the  amount  of  the  seed  should  be  doubled. 


192  WILLS  v.  SIMMONDS. 

FIRST  DEPARTMENT,  JULY  TEBM,  1876. 

Plaintiffs  were  also  at  liberty  to  cease  furnishing  any  supplies  of 
seed  at  any  time  when,  in  their  judgment,  further  continuance  oi 
the  manufacture  was  injurious  to  the  interests  of  the  parties  to  the 
agreement. 

By  the  agreement  the  arrangement  between  the  parties  contem- 
plated by  its  terms  was  to  continue  one  year.  At  the  end  of  the 
year,  after  paying  the  expenses  of  running  the  mill,  including 
necessary  repairs  and  insurances,  Crocker  should  draw  $6,000  for 
his  personal  expenses,  which  he  was  at  liberty  to  draw  at  the  rate 
of  $500  per  month.  The  net  balance  of  earnings  to  be  divided  by 
M.  Crocker  &  Co.  in  three  equal  parts,  one  of  which  was  to  be 
paid  over  to  each  of  the  parties  to  the  agreement  other  than  Crocker, 
to  be  applied  to  the  reduction  of  the  indebtedness  of  Crocker  & 
Co.  to  said  parties.  It  was  also  agreed  that  all  proceeds  of  seed 
furnished  under  the  agreement  were  to  be  held  for  the  benefit  of  the 
parties  other  than  M.  Crocker  &  Co.  equally.  Afterward,  and  on 
the  24th  day  of  May,  1874-,  by  the  agreement  of  the  parties,  the 
contract  was  extended  for  one  other  year,  and  until  the  24th  May, 
1875,  with  some  modifications,  however.  The  modifications  were, 
substantially,  that  in  case  the  seed  imported  should  be  wholly  lost 
by  fire  or  perils  of  the  sea,  then  plaintiffs  should  be  entitled  to 
hold  to  their  own  use  the  insurance  recovered  thereon,  to  the  extent 
of  their  advances  and  the  costs  and  charge's  of  importation,  and  any 
excess  should  be  paid  to  Crocker  &  Co.,  and  in  case  the  sums 
received  from  such  insurance  should  not  cover  their  advances  and 
charges  in  Calcutta  and  costs  of  importation,  Crocker  &  Co.  should 
reimburse  them  in  full  such  charges  as  should  not  be  refunded  by 
the  insurance  moneys,  and  in  case  Crocker  &  Co.  should  fail  to 
reimburse  them,  said  liabilities  should  be  shared  equally  by  the 
other  parties  to  the  agreement.  And  as  to  the  portion  of  the  gross 
gold  cost  of  the  seed  to  be  furnished  in  Boston,  for  which  Crocker 
<fe  Co.  should  give  a  note,  they  should  pay  upon  such  note  such 
proceeds  of  the  sales  and  earnings  of  the  mill  as  he  might  be  able 
to  do  in  cash,  fifteen  days  at  least  before  the  acceptances  for  the  cost 
should  fall  due  in  London.  In  the  event  that  he  should  not  be  able 
to  pay  such  note  in  full  in  season  to  meet  such  acceptances,  then 
Crocker  &  Co.  should  draw  a  draft  on  the  defendants  at  sixty  days' 
sight  to  their  own  order,  and  hand  the  same  to  plaintiffs.  Such 


WILLS  y.  SIMMONDS.  193 

FIKST  DEPARTMENT,  JULY  TERM,  1876. 

draft  to  be  for  the  amount  of  the  deficit  of  the  note  not  paid  in 
cash.  And  defendants  agreed  to  honor  such  draft,  and  the  drafts 
so  honored  should  be  provided  for  by  Crocker  &  Co.  by  remittances 
ol  other  drafts  to  defendants  on  or  before  the  maturity  of  the  same 
in  London.  It  was  further  agreed  that  Lee  should  indorse  or  guar- 
antee the  payment  of  the  note  given  by  Crocker  &  Co.  to  his  order, 
for  the  payment  of  his  proportion  of  the  cost  of  the  seed. 

The  complaint  in  the  first  action  avers  that  the  parties  entered 
upon  the  performance  of  the  contract,  and  that  the  plaintiffs  duly 
performed  all  the  conditions  on  their  part. 

That,  in  pursuance  of  the  contracts,  Crocker  &  Co.  ordered  and 
the  plaintiffs  furnished  them,  among  others,  the  following  ship- 
ments of  seed : 

Ex  Winona,  38,436  bushels,  costing  $95,509.54  in  gold  coin. 
Ex  Lottie  Warren,  13,973  bushels,  costing  $33,662.83  in  gold  coin. 
Ex  Susan  Gilmore,  31,263  bushels,  costing  $71,915.53  gold  coin. 
That  the  total  cost  of  the  aforesaid  shipments  amounted  to 
$201,087.90  in  gold  coin,  as  made  up,  under  and  by  virtue  of  the 
terms  of  the  aforesaid  contract. 

That  the  said  Crocker  &  Co.  accepted,  in  Boston,  the  aforesaid 
shipments  as  a  true  performance  by  the  plaintiffs  of  the  contracts. 

The  plaintiffs  allege  that,  after  the  shipments  were  ordered  and 
purchased,  and  prior  to  their  arrival  in  Boston,  the  market  value 
of  the  seed  fell,  and  that  the  defendants  forbade  Crocker  &  Co.  to 
receive  the  shipments,  excepting  only  6,000  bags  thereof  imported 
by  the  Winona,  and  refused  to  allow  Crocker  &  Co.  to  draw  bills 
of  exchange,  in  compliance  with  the  terms  of  the  contracts,  for  the 
payment  of  any  of  the  shipments,  and  notified  Crocker  &  Co.  that 
any  bills  so  drawn  would  not  be  honored,  and  would  be  refused 
acceptance. 

That,  in  consequence  of  the  defendants'  acts  and  their  refusal  to 
comply  with  and  perform,  on  their  part,  the  terms  of  the  contracts, 
Crocker  &  Co.  were  unable  and  declined  to  pay  for  the  shipments, 
and  the  plaintiffs  have  been  and  are  obliged  to  hold  and  sell  the 
seed,  and  to  rely  upon  the  same  at  its  reduced  value  for  the  pre- 
servation of  their  lien  for  its  cost.  That,  by  reason  of  the  premises 
and  of  the  wrongful  acts  of  the  defendants  above  stated,  the  plain- 
tiffs have  suffered  damages  in  the  sum  of  $58,515.80  and  upwards 
HTTN— VOL.  VHI.  26 


194  WILLS  v.  SIMMONDS. 

FIRST  DEPARTMENT,  JULY  TERM,  1876. 

in  gold  coin.  The  complaint  contains  a  further  cause  of  action,  m 
substance : 

That  Crocker  &  Co.  ordered  a  certain  other  lot  of  seed,  to  wic, 
5,000  bags  and  about  4,000  pockets ;  and  that  the  same  was  pro- 
cured and  furnished  by  the  plaintiffs  in  compliance  with  the  ordei 
of  Crocker  &  Co.,  and  with  the  terms  of  the  contracts,  and  was 
shipped  from  Calcutta  on  board  the  ship  Winged  Hunter  for  Bos- 
ton, on  or  about  April  6,  1875,  and  which  vessel  was,  at  the  time 
of  the  commencement  of  this  action,  alleged  to  be  "  on  the  voyage.'' 

That  the  defendants  have  forbade  Crocker  &  Co.  to  receive  the 
said  shipment,  and  have  refused  to  allow  Crocker  &  Co.  to  take  and 
pay  for  same  under  the  contracts,  or  to  draw  bills  of  exchange  there- 
for upon  them  in  compliance  with  the  terms  of  the  contracts,  and 
do  declare  that  they  will  not  accept  or  pay  any  such  bills,  and  have 
so  notified  Crocker  &  Co. 

That  since  said  shipment  was  ordered  and  procured  the  market 
price  of  such  seed  has  fallen,  and  that  by  reason  of  the  defendants' 
acts  and  refusal  to  comply  with  the  terms  of  the  contracts,  the 
plaintiffs  have  been,  and  are  compelled  to  rely  upon  the  shipment 
at  its  reduced  value  to  reimburse  themselves  the  costs  thereof,  and 
have  been  and  are  damaged  in  the  stun  of  $10,000  gold  coin. 

The  plaintiffs  demand  judgment  in  the  sum  of  $80,000  gold  coin 
as  their  damages  in  the  action. 

The  second  suit  is  on  the  refusal  to  accept  drafts  drawn  by  Crocker 
&  Co.  on  the  defendants  for  the  alleged  deficit  between  the  notes 
given  to  the  plaintiffs  by  Crocker  &  Co.  for  their  one-third,  and 
the  amount  they  (Crocker  &  Co.)  were  unable  to  pay  on  such 
notes. 

The  following  is  the  opinipn  of  YAN  VOBST,  J.,  referred  to  in 
opinion  of  BBADY,  J.,  below : 

VAN  VOBST,  J.  The  plaintiffs,  the  defendants,  and  James  Lee, 
Jr.,  parties  to  the  contracts  set  forth  in  the  complaint,  were  cred- 
itors of  Crocker,  the  remaining  party  thereto.  Crocker  was  unable 
to  pay  his  debts  without  sacrificing  his  property  and  destroying 
his  business,  which  he  desired  to  preserve  for  a  time  at  least. 

The  plaintiffs,  defendants  and  Lee  were  willing  to  aid  him  ic 
his  desire,  so  far  as  they  could  safely  do  so,  by  waiting  for  the  pay 


WILLS  v.  SLMMONDS.  195 

FIRST  DEPARTMENT,  JULY  TERM,  1876. 

raent  of  their  claims,  and,  amongst  other  things,  they  covenanted 
with  each  other  not  to  bring  suit,  nor  invoke  process  in  bankruptcy 
on  their  demands  for  one  year.  They  secured,  as  the  contract  of 
May  24,  1873,  discloses,  a  conveyance  of  the  real  estate  of  Crocker, 
the  debtor,  to  three  trustees,  who  were  empowered  to  sell  within  a 
time  limited  in  execution  of  the  trust ;  and  they  agreed  to  invest 
inoneys  for  the  purchase  of  seed  to  be  manufactured  into  oil,  in 
reality  for  the  benefit  and  advantage  of  all  the  contracting  parties. 

As  to  Crocker,  if  successful,  the  business  would  be  preserved. 
As  to  the  other  parties,  the  profits  to  be  realized  would  belong  to 
them,  and,  if  sufficient,  would  pay  their  claims. 

The  seed  to  be  manufactured  was  to  be  purchased  by  the  plain- 
tiffs on  the  order  of  Crocker,  and  was,  in  the  first  instance,  to  be 
paid  for  by  them,  through  credits  to  be  by  them  provided  for  the 
purpose.  But,  upon  the  arrival  of  the  seed  at  Boston,  plaintiffs 
were  to  receive  from  Crocker  one-third  of  the  costs  and  charges 
thereof  by  a  draft  on  the  defendants,  which  they  were  to  honor  and 
pay,  one-third  by  Crocker's  note  to  the  order  of  Lee,  the  payment 
of  which  was,  in  the  end,  to  be  guaranteed  by  him.  The  remaining 
third  was  to  be  secured  by  Crocker's  note  to  the  plaintiffs. 

Although  these  notes  and  drafts  were  to  be  made  and  drawn  by 
Crocker,  yet  it  was  within  the  contemplation  of  the  parties  that 
they  should  in  fact  be  paid  by  him  out  of  the  proceeds  of  the  mill. 
The  agreements,  as  a  whole,  contemplate  such  result.  This  was 
clearly  so  with  respect  to  the  advances  to  be  made  by  plaintiffs  and 
defendants.  For  the  agreements  provide  that  for  the  third  of  the 
cost  of  the  seed,  which  the  defendants  were  to  assume  by  accepting 
and  honoring  the  drafts  drawn  therefor,  all  the  cake  made  in  the 
oil  mills  was  to  be  shipped  to  them  for  sale ;  but  in  the  event  that 
the  cake  did  not  produce  sufficient  to  meet  the  drafts  for  their  third 
of  the  cost  of  the  seed,  the  deficiency  was,  in  effect,  to  be  made  up 
to  them  out  of  the  proceeds  of  the  mill. 

With  respect  to  the  notes  to  be  given  by  Crocker  to  plaintiffs 
themselves  for  their  third  of  the  cost  of  the  seed,  the  modified 
agreement  provides  for  their  ultimate  payment  out  of  the  proceeds 
and  earnings  of  the  mill. 

The  effect  of  the  agreements,  therefore,  was  substantially  that 
the  parties  other  than  Crocker  should  equally  contribute  to  the 


196  WILLS  v.  SIMMONDS. 

FIRST  DEPARTMENT,  JULY  TERM,  1876. 

purchase  of  the  seed,  and  that  they  should,  in  any  event,  be  reim- 
bursed out  of  the  proceeds  of  its  manufacture. 

The  profits  of  the  manufacture  of  the  seed  into  oil  were  to  be 
received  and  held  by  the  plaintiffs,  defendants,  and  Lee,  not  in  the 
proportion  of  their  respective  claims  and  demands  against  Crocker, 
but  equally.  They  severally  stood  related  to  the  profits  as  they 
did  to  their  contribution  of  money  in  the  purchase  and  payment 
of  the  seed. 

The  language  of  the  agreement  is  :  "  It  is  understood  and  agreed 
that  all  proceeds  of  seed  furnished  under  this  agreement  are  held 
for  the  benefit  of  the  parties,  other  than  Crocker,  equally." 

And  again  :  "At  the  end  of  the  year  contemplated  by  this  agree- 
ment, after  paying  the  expenses  of  running  the  linseed  oil  mill, 
including  necessary  repairs  and  insurance,  M.  Crocker  shall  draw 
$6,000  for  his  personal  expenses,  which  he  is  at  liberty  to  draw  at 
the  rate  of  $500  per  month  during  the  year,  the  net  balance  of 
earnings  shall  be  divided  by  said  M.  Crocker  &  Co.  into  three  equal 
parts,  one  of  which  shall  be  paid  over  to  each  of  the  three  parties 
hereto." 

It  was  within  the  contemplation  and  understanding  of  the  par- 
ties that  the  losses  incident  to  the  business  under  the  agreement 
should  be  borne  in  the  same  proportion.  For  it  is  provided  that  in 
case  the  seed  imported  under  the  order  of  Crocker  should  be 
wholly  lost  by  fire  or  perils  of  the  sea,  the  insurance  should  be  paid 
to  plaintiffs.  Such  arrangement  was  just,  because,  under  the  agree- 
ments of  the  parties,  plaintiffs  could  not  call  upon  the  other  parties 
to  contribute  to  the  purchase  until  the  seed  should  have  arrived  in 
Boston.  But  if  the  insurance  exceeded  the  costs  and  charges,  the 
excess  was  to  be  paid  to  M.  Crocker  &  Co.  Such  excess  Crocker 
would  doubtless  receive  and  hold  for  the  advantage  of  all  the  par- 
ties to  the  contract.  But  in  the  event  that  the  sums  received  for 
insurance  should  not  cover  the  advances  and  charges,  plaintiffs 
were  to  be  reimbursed  by  Crocker  &  Co.  for  the  deficiency  ;  and 
should  Crocker  &  Co.  fail  to  pay,  liability  for  the  deficiency  was  to 
be  shared  equally  by  the  contracting  parties. 

The  losses  of  the  business,  or  its  want  of  profitable  prosecution, 
were,  in  effect,  to  be  borne  and  sustained  equally,  at  least  by  all 
the  parties  except  Crocker.  It  was  the  net  balance  of  the  earnings 


WILLS  v.  SIMMONDS.  197 

FIBST  DEPARTMENT,  JULY  TERM,  1876. 

which  was  to  be  paid  over  to  the  plaintiffs,  defendants  and  Lee 
equally.  So,  if  nothing  was  earned  nothing  could  be  received. 

It  is  reasonably  clear  that  Crocker  was  interested  pecuniarily  in 
both  profits  and  losses.  He  participated  in  the  former  to  the 
extent  of  having  his  debts  paid  therefrom,  and  thus  saving  his 
property ;  and  when  the  debts  were  paid  in  full  he  was  entitled  to 
a  restoration  of  his  property. 

So  that  in  this  case  we  have,  under  the  agreements,  a  joint  con- 
tribution of  capital  in  money,  property,  and  services  by  the  respec- 
tive parties,  a  joint  participation  in  the  profits  and  in  bearing  the 
losses  ;  and  these  are  incidents  which  characterize  a  partnership  and 
indicate  a  copartnership  relation  between  the  contracting  parties 
in  the  undertaking  in  question. 

But  it  is  urged  by  the  plaintiffs'  counsel  that  the  element  of 
agency,  ever  present  in  a  partnership,  is  here  wanting.  But  if  the 
facts  be  closely  considered,  it  will  be  seen  that  this  is  not  so. 
Plaintiffs  were  agents  for  all  the  parties  in  ordering,  receiving,  and 
paying  for  the  seed ;  they  were  such  agents  in  effecting  the  insur- 
ance. Defendants  were  agents  for  the  other  parties  in  receiving 
and  selling  the  cake,  the  product  of  the  mill,  and  could  be  held  by 
all  the  parties  to  a  faithful  application  of  the  proceeds  of  the  same, 
to  the  discharge  of  their  proportion  of  the  moneys  paid  by  them  on 
the  purchase  and  delivery  of  the  seed,  and  their  accounts  in  the 
premises  could  have  been  reviewed  by  the  others,  as  could  plaintiffs' 
account  of  the  purchases  and  insurance. 

Crocker  was  agent,  also,  for  the  other  parties  in  making  his  orders 
for  seed,  in  conducting  the  manufacture  of  oil,  in  payment  of  moneys 
therefor,  and  in  the  appropriation  of  the  earnings.  It  is  true  no 
specific  duty  appears  to  have  been  assigned  to  Lee,  but  he  was 
under  positive  obligation  to  pay  his  proportion  of  the  cost  of  the 
seed.  He  could  doubtless,  as  a  party  in  interest  in  the  profits,  act 
for  the  others  with  respect  to  any  implied  power  necessarily  arising 
under  the  agreements  for  the  preservation  of  their  joint  interest. 

It  is  true  that  the  intention  of  the  parties  should  control ;  but 
8.ich  intention  must  be  gathered  from  the  contracts,  through  which 
the  parties  have  spoken,  and  parties  must  be  held  to  intend  what 
their  words  and  acts  reasonably  indicate. 

It  must  be  conceded,  therefore,  that  the  relation  of  the  parties 


198  WILLS  v.  SIMMONDS. 

FIRST  DEPARTMENT,  JULY  TERM,  1876. 

for  the  time  limited  by  the  contracts  in  the  prosecution  of  the 
undertaking  therein  indicated  was  a  partnership  one. 

In  the  case  of  Cox  v.  Rickman  (8  House  of  Lords  Cases,  312), 
an  agreement  between  the  debtor,  his  trustees  and  creditors,  sub- 
stantially for  the  continuance  of  the  business,  was  held  not  to  con- 
stitute a  partnership.  There  was,  however,  a  marked  difference  in 
opinion  among  the  learned  judges  who  considered  that  case.  It 
was  finally  decided  as  above  indicated.  But  the  case  now  consid- 
ered differs  essentially  from  Cox  v.  Hickman.  I  do  not  find  in 
that  case  any  agreement  on  the  part  of  the  creditors  for  a  joint  con- 
tribution of  moneys  for  the  purchase  of  stock  to  be  used  ;  nor  did 
the  net  profits  in  that  case,  as  here,  belong  absolutely  to  the  parties 
who  contributed  moneys  for  the  purchase  of  stock.  The  profits  or 
income  belonged  to  the  debtor. 

But  the  conclusion  reached  does  not  necessarily  determine  that 
Lee  and  Crocker  are  necessary  parties  to  this  action,  or  that  this 
court  has  no  jurisdiction  to  entertain  this  action,  which  is  a  suit  at 
law  for  damages.  It  is  a  general  rule  that  no  action  can  be  main- 
tained at  law  by  one  partner  against  another  which  would  involve 
an  accounting  of  the  copartnership  affairs.  An  action  to  recover 
a  balance  struck  and  agreed  upon  would  involve  no  accounting. 

As  was  said  in  the  early  case  of  Casey  v.  Brush  (2  Caines,  293), 
assumpsit  cannot  be  maintained  by  one  partner  against  another  for 
a  balance  due  on  a  joint  transaction,  unless  there  be  evidence  of 
an  express  promise.  (Townsend  v.  Goew&y,  19  Wend.,  424; 
Petrie  v.  Petrie,  7  Lans.,  90.) 

In  Lindley  on  Partnership  (page  908),  in  his  sixth  rule  on 
this  subject,  it  is  stated  :  "  With  reference  to  this  inquiry,  it 
will  be  found  useful  to  keep  constantly  in  mind  these  questions, 
namely : 

"  First.  Is  any  matter  of  account  involved  in  the  dispute  to 
which  the  action  relates? 

"Second.  Will  the  damages  sought  to  be  obtained  belong,  if 
obtained,  to  the  firm  ? 

"  Third.  Will  such  damage  bave  to  be  paid  out  of  a  fund  to 
which  the  plaintiff  must  himself  contribute  ? 

"  If  these  three  questions  can  be  answered  in  the  negative  —  that 
is,  if  the  action  can  be  properly  brought  and  decided,  wholly  irre- 


WILLS  v.  SIMMONDS.  199 

FIRST  DEPARTMENT,  JULY  TERM,  1876. 

spective  of  the  state  of  the  accounts  between  the  partners  ;  and  if 
the  damages  sought  will,  when  recovered,  belong  not  to  the  firm, 
including  the  defendant  in  the  action,  but  exclusively  to  the  plain- 
tiff; and  if  he  will  not  have  to  contribute  to  his  own  payment,  then 
an  action  will  lie,  notwithstanding  the  parties  to  it  are  partners, 
and  the  matter  relates  to  some  partnership  transaction." 

And  again  (at  page  911),  the  same  author  adds:  "And  generally 
an  action  may  be  brought  for  damages  sustained  by  any  breach  of 
an  express  stipulation  with  his  copartners,  if  it  is  so  framed  as  to 
admit  of  an  action  by  some,  or  one  only,  of  the  partners  against 
the  partner  complained  of,  and  the  damages,  when  recovered,  will 
not  belong  as  much  to  himself  as  to  the  plaintiff."  (-Brown  v. 
Tapscott,  6  Meeson  &  Welsby,  119.) 

Where  one  person,  even  if  he  is  a  partner,  expressly  promises 
the  other  to  pay  for  the  articles  furnished,  or  to  furnish  a  given 
amount  of  capital,  the  latter  may  sue  the  former  at  law.  (Gollamer 
v.  Foster,  26  Yt.,  757.) 

And  in  Yenning  v.  Leckie  (13  East,  7),  where  the  defendant 
agreed  to  take  one-half  of  certain  goods  bought  by  plaintiffs  on 
their  joint  account,  and  to  furnish  the  plaintiffs  with  half  the 
amount  in  time  for  the  payment  thereof,  it  was  held  that  an  action 
lay  against  the  defendant  for  his  moiety  of  the  price,  although  an 
account  might  have  to  be  taken  between  them  as  partners  upon  the 
subsequent  disposal  of  their  joint  stock.  (Scott  v.  Campbell,  30 
Ala.,  729.) 

The  amount  agreed  to  be  invested  in  the  partnership  before  it  is 
formed  may  be  sued  for  at  law  without  disturbing  the  partnership. 
It  is  an  agreement  to  launch  the  partnership.  (Currier  v.  Webster, 
45  N.  H.,  233  ;  Pickering  v.  De  Rochemont,  id.,  73 ;  Wright  r. 
Cra/psey,  1  Penn.,  112;  Musier  v.  Trumpbour,  5  Wend.,  274.) 

In  the  present  case,  under  the  contract  of  May  24,  1873,  it  was 
agreed,  so  far  as  the  plaintiffs'  and  defendants'  firms  were  concerned, 
that  the  seed  to  be  manufactured  should  be  imported,  and,  in  the 
first  instance,  paid  for  by  the  plaintiffs;  and  to  meet  the  cost  of 
same,  including  all  expenses  and  charges  thereon,  the  plaintiffs, 
upon  the  arrival  and  entry  of  the  ship  bearing  the  seed  at  the  cus- 
tom-house, should  receive  one-third  of  same  in  a  draft  in  sterling, 
drawn  by  Crocker  &  Co.  upon  the  defendants,  which  drafts  the 


200  WILLS  v.  SIMMONDS. 

FIKST  DEPAKTMENT,  JOLT  TKKM,  1878. 

defendants  agreed  to  honor.  This  was  an  absolute  undertaking  on 
the  defendants'  part  with  the  plaintiffs. 

Now,  in  the  event  that  the  plaintiffs  should  import  and  pay  for 
the  seed  under  the  agreement,  the  failure  of  the  defendants  to  ful- 
fill their  part  of  the  agreement,  by  honoring  and  accepting  drafts 
for  their  one-third  of  its  cost,  would  be  a  peculiar  and  special  ground 
of  damages  to  the  plaintiffs,  in  which  neither  the  partnership  nor 
the  members  thereof,  other  than  plaintiffs  and  defendants,  could 
have  any  concern.  The  damages,  when  recovered,  would  have  to 
be  paid  by  defendants  out  of  their  own  means,  and  would  be 
received  by  the  plaintiffs  to  their  own  separate  use. 

It  may  be  that  the  defendants'  breach  of  the  agreement  may 
have  been  the  occasion  of  damage  to  the  copartnership,  but  redress 
in  that  direction  must  be  invoked  in  an  appropriate  proceeding. 

But  this  action  involves  an  inquiry  only  with  respect  to  the  dam- 
ages which  the  plaintiffs  have  solely  sustained  by  the  alleged  breach 
of  the  agreement  by  the  defendants.  Suppose,  for  instance,  that 
the  defendants  had  accepted  drafts  for  one-third  of  the  cost  of  the 
seed,  and  had  in  the  end  failed  to  pay :  the  plaintiffs  could,  without 
doubt,  have  maintained  an  action  against  the  defendants  on  their 
acceptance  without  joining  the  other  parties. 

Nor  is  there  any  thing  in  the  provisions  of  section  118  of  the 
Code  which  makes  it  necessary  to  join  Lee  and  Crocker,  or  either 
one  of  them,  as  defendants.  That  section  provides  that  "  any  per- 
son may  be  made  a  defendant  who  has  or  claims  an  interest  in  the 
controversy  adverse  to  the  plaintiff,  or  who  is  a  necessary  party  to 
a  complete  determination  or  settlement  of  the  questions  involved 
therein."  Neither  of  the  persons  above  mentioned,  for  the  reasons 
above  stated,  have  any  interest  or  claim  in  this  controversy  adverse 
to  the  plaintiffs  in  the  action.  They  cannot  be  affected,  however 
it  may  be  decided,  whether  the  plaintiffs  shall  or  shall  not  recover 
damages  for  the  defendants'  breach  of  his  undertaking  with  the 
plaintiffs ;  and  the  question  can  be  determined,  as  to  the  plaintiffs' 
rights  and  the  defendants'  liability,  without  the  presence  of  either 
Lee  or  Crocker  as  a  party.  Nor  is  there  any  thing  in  section  122 
of  the  Code  which  calls  for  the  bringing  in  of  the  other  parties  to 
the  agreement  in  this  action.  This  particular  controversy  can  be 
completely  determined  without  prejudice  to  their  rights. 


WILLS  v.  SIMMONDS.  201 

FIRST  DEPARTMENT,  JULY  TERM,  1876. 

The  remaining  question  is,  whether  the  defendants'  conduct,  as 
disclosed  in  the  complaint,  amounts  to  a  breach  of  the  contracts. 
This  is,  perhaps,  a  more  serious  question  than  either  of  the 
others. 

It  is  urged  by  the  defendants'  counsel,  that  what  is  alleged  in  the 
complaint,  on  this  part  of  the  case,  is,  at  most,  a  mere  threat,  on 
the  defendants'  part,  not  to  accept  and  honor  the  drafts  of  Crocker 
&  Co.,  and  that  there  was  yet  a  place  of  repentance. 

The  defendants'  conduct  was  more  than  a  threat;  it  was  a  posi- 
tive direction  to  Crocker  &  Co.  not  to  receive  the  seed,  and  a  refusal 
on  their  part  to  allow  them  to  draw  bills  in  compliance  with  the 
terms  of  the  contracts,  accompanied  by  a  notification  that  the  bills 
would  not  be  honored  and  their  acceptance  would  be  refused. 

As  already  observed,  the  seed  was  to  be  furnished  and  paid  for 
by  the  plaintiffs  upon  the  order  of  Crocker  &  Co.  It  was  agreed, 
on  the  part  of  the  defendants,  that  plaintiffs  should  receive  from 
Crocker  &  Co.,  upon  the  arrival  of  the  ship  at  the  custom-house, 
one-third  in  a  draft  sterling,  drawn  by  Crocker  &  Co.  upon  defend- 
ants, which  defendants  should  accept  and  honor. 

The  agreement  to  accept  and  honor  was  an  absolute  engagement 
on  the  defendants'  part,  independent  entirely  of  duties  cast  upon 
Crocker,  save  that  he  should  order  the  seed.  The  complaint  alleges 
that  the  seed  was  imported  by  order  of  Crocker  &  Co.,  and  that 
plaintiffs  performed  all  the  conditions  of  the  contracts  on  their  part. 
These  allegations  the  demurrer  admits 

It  was  not  necessary  that  the  plaintiffs  should  allege  that  Crocker 
had  performed  all  that  was  required  of  him,  in  regard  to  other 
duties  cast  upon  him  by  the  terms  of  the  contracts.  It  wae,  how- 
ever, requisite  that  it  should  appear  that  the  seed  was  ordered, 
imported,  and  received  in  pursuance  of  the  terms  of  the  contracts, 
to  entitle  the  plaintiffs  to  the  indemnity  thereby  provided,  so  far  as 
defendants  were  concerned. 

The  complaint  alleges  that  the  defendants  forbade  Crocker  &  Co 

to  receive  the  seed  or  draw  bills  of  exchange  upon  the  defendants, 

n  compliance  with  the  terms  of  the  contracts,  for  the  payment  of 

any  of  the  shipments,  excepting  only  6,000  bags  imported  by  the 

Winona,  and  notified  Crocker  &  Co.  that  any  bills  so  drawn  would 

not  be  honored  and  would  be  refused  acceptance ;  and  that,  in  con- 

HUN— VOL.  VIII.         26 


202  WILLS  v.  SIMMONDS. 

FIRST  DEPARTMENT,  JULY  TERM,  1876. 

sequence,  Crocker  &  Co.  have  been  unable  and  have  declined  to 
pay  for  the  seed. 

The  action  of  the  defendants  has,  therefore,  availed  to  prevent 
the  drawing  of  the  bills,  and  their  declaration  in  advance  that  they 
would  not,  should  be  held  to  amount  to  a  refusal  to  honor  and 
accept.  Under  such  circumstances  a  party  should  be  held  to  mean 
precisely  what  he  says. 

A  positive  declaration  of  their  intention  not  to  perform  their 
contract  was,  under  these  facts,  a  breach  of  the  contract.  Upon 
the  occurrence  of  the  breach  a  cause  of  action  existed  at  once  in 
favor  of  the  plaintiffs.  (Hochster  v.  De  La  Tour,  2  Ellis  &  B.,  678  ; 
Thompson  v.  Laing,  8  Bos.,  482  ;  Crist  v.  Armour p,  /A  Barb.,  378, 
387 ;  TerwiUiger  v.  Knapp,  2  E.  D.  Smith,  86.) 

It  is  not  necessary  to  determine  what  damages  the  plaintiffs  will 
be  entitled  to  recover.  That  will  depend  upon  the  facts  established 
on  the  trial.  The  breach  of  a  valid  contract  imports  some  damages. 

So  much  for  the  first  cause  of  action  described  in  the  complaint, 
and  which  has  thus  far  been  only  considered. 

The  second  cause  of  action  differs  materially  from  the  first,  in 
that  it  is  alleged  in  the  former  that  the  seed  was  "  shipped  "  on  or 
about  April  6,  1875,  by  the  ship  Winged  Hunter,  and  is  "  now  on 
voyage."  That  is,  the  seed  had  not  arrived,  nor  had  the  ship  been 
entered  at  the  custom-house  when  the  action  was  commenced. 

I  am  of  opinion  that,  as  to  this  second  cause,  the  action  is  pre- 
maturely brought.  Until  the  merchandise  had  actually  arrived  at 
Boston,  the  plaintiffs  were  not  entitled  to  the  'jtr/endants'  accept- 
ances. And  it  may  well  be  that  there  was  a  I#cu8  penitential  for 
the  defendants  as  to  the  seed  afloat. 

The  seed  may  never  arrive  ;  it  may  be  desf.  oyed  by  fire  or  perils 
of  the  sea;  and  such  casualties  were  contemplated  and  provided 
for  by  the  contracts.  The  plaintiffs  were  to  recover  the  insurance 
moneys  in  case  of  loss  by  such  causes,  and,  if  insufficient  to  indem- 
nify them,  the  deficiency  was  to  be  made  up  by  the  other  parties  ta 
the  agreement. 

As  to  the  first  cause  of  action,  no  valid  ground  of  demurrer  has 
oeen  assigned,  and  there  must  be  judgment  for  the  plaintiffs 
thereon.  As  to  the  second  cause  of  action,  the  objection  that  no 
cause  therefor  is  set  up  in  the  complaint  is  well  taken,  and  there 


WILLS  v.  SIMMONDS.  203 

FIBST  DEPAHTMENT,  JULY  TERM,  1876. 

should  be  judgment  for  the  defendants  on  the  demurrer  as  to  such 
second  cause  of  action. 

TJiomas  H.  Hubbard,  for  the  plaintiffs. 
Charles  M.  Da  Costa,  for  the  defendants. 

BEADY,  J. : 

The  court  below,  having  arrived  at  the  conclusion  that  this  action 
can  be  maintained  in  its  present  form,  although  the  agreements 
between  the  defendants  Wills  and  Lee  constituted  them  copartners 
inter  se,  it  is  not  deemed  necessary  to  consider  and  determine  at 
this  stage  of  the  controversy  whether  or  not,  on  the  facts  set  out  in 
the  complaint,  that  relation  existed  between  them.  The  nature  of 
the  plaintiffs'  claim  is  such,  as  clearly  demonstrated  by  Justice  VAN 
VOEST  in  his  opinion,  that  they  may  prosecute  it  without  waiting 
until  a  final  adjustment  of  partnership  accounts.  It  is  not  neces- 
sary either,  to  consider  further  than  he  has  done  in  his  opinion,  the 
necessity  of  making  the  other  parties  to  the  agreements  parties  to 
this  action.  Nor  do  we  consider  it  necessary  to  scrutinize  the 
question  more  than  he  has  done,  which  originated,  it  would  seem, 
with  the  case  of  Hochster  v.  De  La  Tour.  The  authorities  in  this 
State,  cited  by  Justice  VAN  VOKST,  have  upheld  the  doctrine  of  that 
case,  and  although  it  has  been  criticised  elsewhere,  it  is  sufficiently 
indorsed  to  be  controlling  until  the  court  of  last  resort  shall  reject 
or  limit  its  application.  The  rule  established  by  it  is  consonant 
with  reason  and  common  sense,  and  when  we  get  such  a  result  in  the 
administration  of  the  law,  there  is  no  particular  necessity  to  wander 
into  any  field  of  speculation  or  inquiry  for  the  purpose  of  disturbing  it. 

A  man  should  be  held  to  mean  what  he  says.  We  adopt  the 
reasoning  and  conclusion  of  Justice  VAN  VOBST  on  these  subjects 
therefore.  In  reference  to  the  second  cause  of  action,  we  think  he 
was  in  error.  The  principle  which  gives  to  the  plaintiffs  the  right 
of  action  as  to  the  first  cause  set  up,  cannot  be  withheld  from  the 
second.  The  positive  affirmation  of  the  defendants,  that  they 
would  not  comply  with  the  agreement,  has  the  same  effect  whether 
the  goods  were  to  arrive  or  at  hand.  The  authorities  cited  by  the 
defendants'  counsel,  namely,  Leigh  v.  Paterson  (2  J.  B.  Moore, 
588) ;  Phillpotts  v.  Evans  (5  M.  &  W.,  475) ;  Ripley  v.  McClurc 


204  WILLS  t>.  SIMMONDS. 

FIRST  DEPARTMENT,  JOLT  TERM,  1876. 

(4  Exch.,  345),  do  not  conflict  with  the  case  of  Hochster  v.  De  La 
Tour  or  with  this  view. 

The  right  of  the  party  to  act  on  the  notice  not  to  perform  is 
recognized  by  them. 

In  Frost  v.  Knight  (L.  R.  [5  Exch.],  322 ;  reversed  in  Exchequer 
Chambers,  L.  R.  [7  Exch.],  Ill),  the  right  of  the  party  to  treat  tho 
repudiation  of  the  contract  as  putting  an  end  to  it,  is  not  only 
admitted  but  sustained  by  the  authorities,  and  although  the  rights 
nf  the  defaulting  party  are  in  that  case  preserved  by  suggestions 
thereto  until  the  time  of  performance  has  actually  arrived,  if  the 
injured  party  delay  commencing  his  action  before  that  time,  yet 
the  rule  suggested  is  a  deduction  merely.  What  would  be  obliga- 
tory on  the  party  repudiating  to  overcome  his  act,  is  not  defined. 
Doubtless,  if  the  defendants  changed  their  views  on  the  subject  of 
repudiation,  and  so  advised  the  plaintiffs  when  the  opportunity  still 
existed  for  them  to  perform,  that  fact  would  be  a  perfect  answer  to 
the  case  alleged  (Cases  supra),  but  the  burden  of  showing  it  rests 
upon  them.  We  are  now,  however,  discussing  the  plaintiffs'  case 
on  the  complaint.  When  the  refusal  is  positive,  as  it  was  in  this 
case,  the  plaintiffs  were  under  no  obligation  to  seek  the  defendants 
again,  to  ascertain  whether  they  repented  and  would  perform,  and 
the  case  is  made  out. 

The  plaintiffs  had  a  right  to  act  from  the  standpoint  which  the 
defendants  had  themselves  created. 

Men  are  presumed  to  intend  the  natural  consequences  of  their 
acts,  and  when  the  defendants  said,  "  We  won't,"  it  meant  that  they 
"  would  not,"  and  the  consequences  are  theirs. 

The  error  committed  in  the  court  below  was  therefore  in  sustain- 
ing the  demurrer  to  the  second  cause  of  action.  The  appeal  of  the 
plaintiff  is  for  these  reasons  sustained,  and  that  of  the  defendants 
overruled. 

Both  appeals  are  consequently  decided  in  favor  of  the  plaintiffs, 
and  the  orders  made  affirmed,  except  so  far  as  the  one  sustains 
demurrer  to  second  cause  of  action  in  the  complaint  in  the  first 
action,  and  as  to  that  reversed  and  demurrer  overruled,  with  ten 
dollars  costs,  and  the  disbursements  of  the  appeal. 

DAVIS,  P.  J.,  and  DANIELS,  J.,  concurred. 
Ordered  accordingly. 


SPELMAN  v.  TERRY.  205 


FIRST  DEPARTMENT,  JULY  TERM,  1876. 


IN  THE  MATTER  OF  THE  PETITION  OF  SARAH  FRANCES  SPEL- 
MAN, HENRY  C.  CHERRY  AND  CYNTHIA  BROWN 
HOYT,  PETITIONERS,  RESPONDENTS,  v.  EDMUND  TERRY, 
SPECIAL  GUARDIAN,  APPELLANT. 

Special  guardian  —  owner  of  tax  title  to  infants'  real  estate  —  cannot  dispose  of  hi» 
incumbrance  upon  estate,  altJwugh  it  was  acquired  previous  to  such  appointment.  + 

Where  a  person  had  been  appointed  a  special  guardian  to  sell  certain  real  estate 
belonging  to  infants,  and,  at  the  time,  was  himself  the  owner  of  a  tax  title 
thereto,  and  pending  the  proceedings  under  his  appointment,  sold  the  tax  title 
and  retained  the  money,  claiming  it  as  the  proceeds  of  his  individual  personal 
property: 

Held,  that  having  been  appointed  special  guardian  for  the  sale  of  the  land  while 
owner  of,  and  prior  to  the  sale  of  his  tax  title  thereto,  the  being  clothed  with 
such  office  deprived  him  of  the  power  of  disposing  of  the  tax  title,  and  the  sale 
of  the  same  must  be  considered  as  one  accruing  to  the  infants'  advantage,  and 
he  must  account  to  them  therefor,  but  should  be  allowed  his  payments  and 
expenses  in  reference  to  such  tax  title,  with  interest,  up  to  the  time  of  the 
adjustment  of  the  balance,  if  any,  due  to  the  infants. 

APPEAL  from  an  order  of  the  Special  Term,  ordering  Edmund 
Terry,  special  guardian  of  Martha  Celina  Brown  and  Alice  Brown, 
iu  discharge  of  his  trust  to  pay  over  certain  moneys. 

Freeman  Brown,  a  colored  man,  died  in  1853,  possessed  of  a  house 
and  lot  in  Brooklyn,  leaving  two  children,  Martha  Celina  Brown 
and  Alice  Brown,  infants.  In  the  spring  of  1857,  Edmund  Terry, 
an  attorney,  was  appointed  special  guardian  in  proceedings  to  sell 
this  their  real  estate.  At  the  time  of  such  appointment,  Terry  held 
a  tax  title  to  said  premises,  and  after  his  appointment  he  made  no 
sale  in  such  proceedings,  but  during  their  pendency  and  on  or  about 
April  17,  1858,  disposed  of  his  tax  title  to  one  Hunt  for  $382.33. 
Both  Martha  Celina  Brown  and  Alice  Brown,  the  said  infants,  died 
subsequent  to  such  sale,  under  the  age  of  twenty-one  years,  leaving 
the  petitioners,  Sarah  Frances  Spelman,  Henry  C.  Cherry  and  Cyn- 
thia Brown  Hoyt,  their  only  heirs  at  law,  next  of  kin,  who,  in  June, 
1875,  made  their  petition  in  the  original  matter,  setting  forth  that 
they  were  poor,  and  until  within  three  years  ignorant  of  the  acts 
of  Terry,  and  from  want  of  means  unable  to  take  action  upon  the 
same  and  praying  for  a  reference,  and  that  Terry  be  compelled  to 


206  SPELMAN  v.  TERRY. 

FIRST  DEPARTMENT,  JULY  TERM,  1876. 

render  an  acconnt  of  his  proceedings  as  guardian  for  said  infants, 
and  for  all  moneys  received  by  him  from  the  said  property,  and  by 
him  as  such  guardian,  and  from  the  sale  made  by  him,  and  to  pay 
such  moneys  into  court  to  be  disposed  of  as  it  should  deem  proper. 

Henry  E.  Dames^  for  the  appellant. 
John  S.  Davenport,  for  the  respondents. 

BRADY,  J. : 

On  the  28th  of  March,  1851,  the  appellant  became  the  owner  of 
a  lease  or  declaration  of  sale,  constituting  a  tax  title  affecting  the 
premises  known  as  132  McKibben  street,  in  the  city  of  Brooklyn. 
He  assigned  it  to  one  John  G.  Haight,  on  the  4th  of  June,  1851, 
and  then  commenced  an  action  thereon  against  Freeman  Brown,  a 
colored  man,  who  was  the  owner  of  the  fee.  Brown  died  in  1853, 
leaving  a  widow  and  two  infant  children,  the  widow  being  their  step- 
mother. He  left  a  will  by  which  he  appointed  Robert  Brister  his 
executor.  On  the  18th  November,  1856,  Brister  paid  to  Mr.  Terry 
$132  for  the  expenses  of  the  action  mentioned,  and  for  the  mesne 
profits,  taking  a  receipt  signed  by  Mr.  Terry,  as  the  attorney  of 
Haight.  In  the  receipt  the  suit  is  styled  in  ejectment,  and  the 
house  and  lot  is  said  to  have  been  sold  for  taxes,  about  ten  years 
before  the  receipt  was  signed.  Soon  after  the  1st  of  October,  1856, 
the  precise  date  does  not  appear,  Haight  reassigned  the  lease  or 
declaration  of  sale  to  Terry,  and  it  may  be  that  he  was  the  owner 
of  it  when  the  money  mentioned  was  paid  by  Brister  to  him.  It 
may  be  because  the  reassignment  was,  as  stated,  soon  after  the  1st 
of  October,  1856.  In  1857,  an  application  was  made  in  the  County 
Conrt  of  Brooklyn,  for  the  sale  of  the  infants'  estate,  and  Brister 
applied  to  Terry  to  conduct  the  proceedings  therefor,  and  he  con- 
sented to  do  so.  He  became  also,  on  his  application,  the  special 
guardian  to  make  the  sale,  and  filed  the  bond  required  by  law.  It 
will  be  perceived  that  when  he  undertook  to  conduct  the  proceed- 
ings for  the  sale  of  the  infants'  real  estate,  and  when  he  became 
special  guardian,  he  was  the  owner  of  the  lease  or  declaration  of  sale, 
upon  which  he  had  theretofore  commenced  an  action  against  the 
father  of  the  infants,  ostensibly  for  Haight.  He  held,  theiefore,  ar 


SPELMAN  v.  TERRY.  207 

FIRST  DEPARTMENT,  JULY  TERM,  1876. 

interest  adverse  to  the  infants,  and  one  which,  if  the  sale  contem 
plated  by  the  proceedings  mentioned  had  been  accomplished,  would 
have  required  from  him  a  release,  in  order  to  remove  an  apparent 
cloud,  unless,  indeed,  the  lease  or  declaration  of  sale  was  void  upou 
its  face.  He  made  no  sale  as  special  guardian,  but  on  the  17th  of 
April,  1858,  and  while  he  was  still  the  attorney  and  special  guardian 
as  stated,  he  sold  the  lease  or  declaration  of  sale  to  one  Joseph 
Hunt,  and  retained  the  money  as  his  own,  claiming  it  as  the  pro- 
ceeds of  his  individual  personal  property.  It  further  appears  that 
the  assignment  of  the  lease  in  no  way  affected  the  estate,  except  so 
far  as  it  deprived  the  heirs  of  the  possession  of  it,  because  Hunt 
was  declared  to  possess  no  title,  and  was  ejected  from  the  premises 
by  the  judgment  of  this  court,  rendered  in  Kings  county.  On 
these  facts  the  learned  justice,  at  Special  Term,  declared  that  Terry 
having  prior  to  the  sale  of  the  land  been  appointed  guardian,  the 
sale  must  be  considered  one  accruing  to  the  infants'  advantage,  and 
he  was  ordered  to  account.  When  the  report  of  the  referee, 
appointed  in  the  proceedings  to  take  proof  of  the  matters  stated 
in  the  petition,  was  presented,  a  further  order  was  made  directing 
Terry  to  pay  the  money  received  on  the  sale  from  Hunt,  with 
interest  thereon,  deducting  therefrom  the  sum  of  twenty-three 
dollars  and  thirty-five  cents,  paid  for  redeeming  the  land  from  a  tax 
burden,  but  making  no  deductions  for  commission.  From  that  order 
this  appeal  was  taken.  The  conduct  of  Mr.  Terry  was  doubtless 
based  upon  the  supposition  that  he  could  represent  his  wards  and  pre- 
serve his  own  interests  which  were  adverse  to  theirs.  The  principle 
on  which  guardians  are  appointed  is,  that  they  shall  have  no  interests 
adverse  to  the  infants,  and  the  same  rule  prevails  in  the  selection  of 
trustees.  Mr.  Terry  should  have  revealed  his  possession  of  the 
lease  to  the  court  and  taken  the  precaution  to  have  elicited  some 
order  or  opinion  thereupon,  to  guide  him  in  the  acceptance  or 
rejection  of  the  contemplated  trust,  and  thus  to  have  protected 
himself  from  any  liability,  by  virtue  of  his  special  character,  when 
he  undertook  to  perform  an  act  decidedly  in  conflict  with  it  and 
the  principles  on  which  it  was  established.  There  is  no  difference 
in  principle  between  his  attitude  to  the  infants  and  that  of  a  broker 
or  agent  who  undertakes  to  serve  two  employers,  or  a  trustee  who 
accepts  a  trust,  given  by  the  court,  on  the  assumption  that  he  hag 


208  SPELMAN  v.  TERRY. 

FIRST  DEPARTMENT,  JULY  TERM,  1876. 

no  individual  purpose  to  serve  or  protect,  which  is  hostile  to  the 
whole  estate  of  which  he  becomes  the  guardian  and  protector.  Many 
of  the  cases  on  the  subject  of  the  duty  of  the  trustee  to  the  cestui 
que  trust,  and  quite  sufficient  to  illustrate  the  governing  rule,  will 
be  found  collected  in  Gardner  v.  Ogden  (22  N.  Y.,  327).  In  the 
language  of  the  lord  chancellor,  in  Whichcote  v.  Lawrence,  cited  in 
22  New  York  Reports  (supra) :  "  The  real  proposition,  which  is 
very  plain  in  point  of  equity,  and  a  principle  of  clear  reasoning,  is 
that  he  who  undertakes  to  act  for  another  in  any  matter,  shall  not 
in  the  same  matter  act  for  himself."  If  Mr.  Terry,  when  it  became 
apparent  that  he  could  not  sell  the  property  as  special  guardian 
under  the  order,  had  asked  to  be  discharged,  he  could  have  relieved 
himself  from  all  obligation  in  that  way,  and  could  then  have 
enjoyed  his  individual  rights  without  error.  This  he  did  not  do. 
The  relation  between  attorney  and  client,  and  guardian  and  ward 
are  watched  with  jealous  care  by  courts  of  law,  and  it  must  be  pre- 
sumed that  Mr.  Terry  knew  of  the  rules  prevailing  in  that  respect. 
It  would  not  answer  in  the  administration  of  justice  to  sanction 
the  appointment  of  a  special  guardian  with  interests  adverse  to  the 
infants,  but  when  it  is  done,  it  must  be  attended  with  the  surrender 
of  such  interests  to  the  court  on  accepting  the  appointment.  This 
is  the  necessary  consequence  of  assuming  to  serve  two  masters.  It 
may  be  that  in  cases  where  such  a  rule  is  to  be  invoked,  there  may 
be  circumstances  destroying  the  responsibility  involved,  but  there 
are  none  such  in  this  case.  The  appellant's  tax  title,  which  is  not  a 
muniment  of  the  highest  order,  was  one  which  should  not  have 
been  suppressed  by  him,  and  the  receipt  of  the  money  from  Hunt 
should  have  been  communicated  to  the  court  in  some  form.  It  was 
not.  This  court  reposing  great  confidence  in  its  officers,  requires 
from  them  absolute  good  faith  and  cannot  be  censured  if  it  is  punc- 
tilious and  exacting,  in  reference  to  the  subject  of  its  confidence  or 
trust.  It  is  said  by  the  appellant,  that  he  did  not  sell  and  could 
not  do  so  as  guardian,  but  this  does  not  satisfy  the  conscience  of  the 
court.  He  was  able  to  sell  under  his  tax  title,  and  it  was  on  his  own 
showing  valueless.  He  could  not  well  urge  the  sale  under  his  guard 
ianship,  without  consenting  to  abandon  his  tax  title,  and  that  he  does 
not  seem  to  have  been  disposed  to  do,  and  yet  it  was,  in  view  of  his 
trust,  the  only  course  for  him  to  pursue  except  to  ask  to  be  relieved 


SPELMAN  v.  TERRY.  209 

FIRST  DEPARTMENT,  JULY  TERM,  1876. 

from  his  guardianship  by  reason  of  his  conflicting  interests.  If  his 
requests  were  granted,  his  tax  title  would  then  have  been  available. 
It  is  said,  also,  that  no  case  can  be  found  in  which  it  has  been  held 
that  a  trustee  by  being  clothed  with  office  is  deprived  of  the  power 
of  disposing  of  an  incurabrance  which  he  may  have  previously  had 
against  the  estate.  This  may  be  so.  Diligent  search  has  not  revealed 
any  case,  but  that  may  arise  from  the  fact  that  the  courts  have  not 
been  called  upon  to  act  in  such  a  case.  But  the  rules  existing  in 
reference  to  trustees,  which  are  applicable  to  principal  and  agent, 
and  guardian  and  ward  (Law  of  Trusts  and  Trustees,  Tiff.  &  Bull., 
144)  are  comprehensive  enough  to  embrace  such  a  case.  The 
general  rule,  said  the  court,  stands  upon  our  great  moral  obligation 
to  refrain  from  placing  ourselves  in  relations  which  ordinarily  excite 
a  conflict  between  self-interest  and  integrity.  It  restrains  all  agents, 
public  and  private.  (Michaud  v.  Giro'd,  4  How.  [U.  S.],  503.)  It  is 
also  said  that  no  harm  was  done  by  the  sale,  inasmuch  as  the  pur- 
chaser received  no  title,  but  it  appears  that  he  was  in  possession 
under  it,  and  through  the  appellant's  instrumentality,  the  infants 
were  deprived  of  their  estate  for  a  time.  This  illustrates  the  success 
of  the  self-interest,  and  the  result  of  the  conflict  between  the 
respective  rights  and  duties,  residing  in  the  same  person.  It  is 
impossible,  therefore  to  view  this  case  other  than  as  one  in  which 
the  guardian  has  rendered  himself  amenable  to  the  authority  of  this 
court.  Its  supervisory  power  over  the  estates  of  infants,  coupled 
with  the  fact  that  the  appellant  is  an  attorney  and  counselor  of 
this  court,  leaves  no  room  to  doubt  on  that  subject.  The  only  real 
difficulty  in  the  case  is,  to  determine  to  what  extent  its  power  should 
be  exercised.  Whether  to  compel  the  payment  of  the  whole  sum 
received,  with  interest,  or  a  part  of  it  only.  In  other  words,  to  do, 
equity.  If  it  should  appear  that  the  estate  or  its  owners  were 
damaged  by  the  sale  to  the  extent  of  the  money  received  and  inter 
eet,  it  would  be  proper  to  require  its  payment,  if  not,  it  would  not 
be.  It  is  true  that  the  appellant  may  be  presumed  to  have  sold  his 
tax  title  as  a  grant  in  effect  of  the  premises,  but  the  price  demanded 
precludes  the  probability  of  such  a  proposition.  By  the  order 
appealed  from  he  has  been  treated  as  the  recipient  of  the  sum  paid 
him  for  the  benefit  of  the  infants,  and  it  would  appear  without 
regard  to  his  payments,  in  reference  to  the  title,  except  one.  Under 
HUN— VOL.  VIII.  27 


2riO  ROLLWAGEN  v.  POWELL. 

FIBST  DEPARTMENT,  JULY  TERM,  1876. 

all  the  circumstances,  therefore,  we  think  the  order  should  be  modi- 
fied as  follows : 

The  appellant  should  be  allowed  his  payments  and  expenses  in 
reference  to  the  tax  title,  with  interest  thereon  up  to  the  time  of 
the  adjustment  of  the  balance,  if  any,  to  the  infants,  and  they 
should  be  allowed  such  balance  after  deducting  the  total  of  the 
appellant's  payments  and  necessary  expenses  and  commissions  from 
the  amount  received  by  him,  and  the  interest  thereon,  provided  the 
validity  of  the  lease  be  not  contested. 

We  think  the  appellant  should  also  be  allowed  his  disbursements 
of  this  appeal.  If  the  respective  counsel  cannot  agree  as  to  the 
amount,  then  an  order  of  reference  will  be  made  to  Mr.  Chetwood 
to  take  proof  and  settle  the  same,  and  to  determine  the  validity  of 
the  lease  given  pursuant  to  the  tax  sale,  if  that  be  denied. 

Ordered  accordingly. 

DAVIS,  P.  J.,  and  DANIELS,  J.,  concurred. 
Order  modified  as  in  opinion. 


FREDERICK  ROLLWAGEN,  JR.,  LOUIS  P.  ROLLWAGEN 
AND  GEORGE  D.  ROLLWAGEN,  APPELLANTS,  v.  ALFRED 
POWELL,  ALFRED  S.  PURDY  AND  OTHEKS,  RESPONDENTS. 

Physician?  fees  — for  examination,  as  to  pregnancy  of  widow  —  quasi  officers  of 
court —  claim  charged  on  estate,  not  affected  by  discontinuance  of  action —  Surro- 
gate—  decree  to  pay  claims  charged  on  estate  by  Supreme  Court  —  although  not 
directly  within  his  statutory  power*  —  upJield. 

In  an  action  in  the  Supreme  Court  to  set  aside  a  will  an  order  was  made,  with  the 
consent  of  all  parties,  appointing  two  physicians  to  inquire  into  the  pregnancy 
of  the  widow  of  deceased,  and  directing  that  their  compensation  be  allowed  as  a 
charge  against  the  estate.  After  the  physicians  had  discharged  their  duties,  and 
pending  a  reference  to  ascertain  the  value  thereof  and  before  the  report  thereon, 
the  action  was  discontinued  without  notice  to  the  physicians,  or  the  court  being 
advised  of  such  outstanding  proceedings.  The  referee's  report  was  subsequently 
filed  awarding  them  $1,000,  and  an  order  made  and  entered  awarding  them  such 
•um,  with  eighty  dollars  expenses  of  the  reference,  and  directing  that  said  sums 
be  ft  lien  and  charge  upon  the  estate.  On  petition  to  the  surrogate  an  order 


ROLLWAGEN  v.  POWELL.  211 

FIKST  DEPARTMENT,  JULY  TERM,  1876. 

was  made  by  him,  directing  the  administrator  of  the  estate  of  the  deceased  to 
pay  the  amount  of  such  order. 

Held,  that  the  physicians  in  this  case  were  qua»i  officers  of  the  court,  and  it  not 
being  intended  that  they  should  be  dependent  upon  the  contingency  of  an  action 
for  their  compensation,  it  was  made  a  charge  in  anticipation  upon  the  estate. 
That  such  order  having  been  made  with  the  consent  of  all  parties,  the  physicians 
became  quasi  parties  to  the  action  in  whose  favor  a  decree  had  been  entered, 
and  the  discontinuance  as  to  them  without  notice  of  the  proceedings  therefor 
was  a  nullity. 

That  their  claim  was  not  a  debt  or  demand  against  the  testator,  or  the  executor 
or  personal  representative  of  the  deceased;  it  was  therefore  questionable  if  the 
surrogate  could  decree  the  payment  thereof;  yet  as  the  order  of  the  surrogate 
was  predicated  on  the  decree  of  the  Supreme  Court,  for  the  payment  of  services 
ordered  by  it,  necessary  in  the  administration  of  justice,  which  expenses  should 
be  paid  out  of  the  estate,  and  could,  by  the  Supreme  Court,  have  been  directly 
ordered  by  it  to  be  paid  out  of  the  funds  in  the  hands  of  the  administrator,  it 
was  proper,  as  matter  of  form,  to  reach  the  funds  of  the  estate  in  the  hands  at 
the  special  administrator  appointed  by  him,  and  would  not  be  disturbed. 

APPEAL  from  an  order  of  the  surrogate  of  the  city  and  county 
of  New  York,  made  on  the  31st  day  of  December,  1875,  ordering 
Frederick  Rollwagen,  Jr.,  as  receiver  of  the  estate  of  Frederick 
Rollwagen,  deceased,  to  pay  Alfred  Powell  and  Alfred  S.  Purdy 
$1,080. 

Frederick  Rollwagen  died  in  the  city  of  New  York  on  the  llth 
day  of  October,  1873. 

A  paper  was  propounded  to  the  surrogate  of  the  city  of  New 
York,  as  the  will  of  said  Frederick  Rollwagen,  for  probate. 

Upon  contest  by  the  next  of  kin  and  heirs  at  law,  the  pretended 
will  was  rejected  by  the  surrogate,  and  his  decision  was  affirmed  at 
General  Term  of  the  Supreme  Court  on  appeal,  and  also  by  the 
Court  of  Appeals,  on  appeal  to  that  court. 

While  the  matter  was  pending  before  the  surrogate,  and  still 
undetermined  by  him,  Samuel  S.  Browning  (who  was  a  minor  and 
an  heir  at  law  of  said  Frederick  Rollwagen),  by  Malcolm  Campbell, 
his  guardian  ad  litem,  commenced  in  the  Supreme  Court  a  suit 
against  Magdalena  Rollwagen  and  others,  to  set  aside  the  paper 
claimed  to  be  a  will,  as  a  will  of  real  estate,  and  to  avoid  the  devises 
of  real  estate  therein. 

After  the  commencement  of  this  action,  Magdalena  Rollwagen. 
the  widow  of  said  Frederick,  claimed  to  be  pregnant,  and  by  order 


212  ROLLWAGEN  v.  POWELL. 

FIRST  DEPARTMENT,  JULY  TERM,  1876. 

made  and  entered  in  this  action  of  Samuel  S.  Browning  by  Mal- 
colm Campbell,  guardian  ad  litem,  v.  Maydalena  Rollwagen  and 
others^  on  or  about  the  14th  day  of  November,  1873,  Dr.  Alfred 
Powell  and  Dr.  Alfred  S.  Purdy  were  appointed  physicians  to  attend 
upon  and  examine  the  said  Magdalena  Rollwagen,  in  connection 
with  her  family  physician,  and  also  to  be  present  at  the  time  and 
place  of  the  birth  of  her  child,  if  any ;  and  it  was  further  ordered 
that  the  compensation  for  said  physicians  be  allowed  as  a  charge 
against  the  estate  of  said  deceased,  Frederick  Rollwagen. 

These  physicians  performed  their  services.  No  compensation  was 
paid  them,  and  upon  their  petition  an  order  was  made  in  said  action 
on  the  22d  day  of  January,  18T5,  referring  to  William  A.  Duer, 
Esq.,  the  question  of  the  proper  amount  of  compensation  to  be 
allowed  them. 

On  the  19th  day  of  February,  1875,  an  order  was  obtained  in  said 
action  (Browning,  by  guardian  ad  litem,  v.  Magdalena  Rollwagen 
and  others],  in  Supreme  Court,  to  show  cause  why  said  action 
should  not  be  discontinued.  On  the  3d  day  of  March,  1875,  a 
decision  was  rendered  that  said  action  be  discontinued  on  payment 
of  taxable  costs  to  defendants  Magdalena  Rollwagen,  Henry  Her- 
mann and  George  Hermann.  Said  costs  were  paid,  and  on  March 
15,  1875,  an  order  was  entered  discontinuing  said  action,  but  said 
Powell  and  Purdy  had  no  notice  of  such  proceedings,  nor  was  the 
court  advised  of  the  outstanding  proceedings  in  reference  to  them. 

William  A.  Duer,  referee,  under  the  order  of  January  22d,  1875, 
made  his  report  on  the  20th  day  of  March,  1875  (after  the  discon- 
tinuance of  the  action),  finding,  as  a  question  of  fact  and  conclusion 
of  law,  that  each  of  said  physicians,  Drs.  Powell  and  Purdy,  recover 
from  the  estate  of  said  deceased  the  sum  of  $500. 

The  report  was  filed  in  the  clerk's  office  March  twenty -seventh, 
noticed  for  confirmation  August  25th,  1875,  for  the  first  Monday  of 
September,  1875,  and  an  order  confirming  said  report,  and  allow- 
ing the  award,  with  eighty  dollars  referee's  fees,  was  entered  Sep- 
tember 29th,  1875.  By  the  terms  of  said  order  *  *  *  "the said 
sum  of  $1,000  is  allowed  to  them,  said  Powell  and  Purdy,  for  their 
services,  together  with  eighty  dollars  for  the  fees  of  said  referee  on 
•aid  reference,  and  the  same  hereby  are  adjudged  to  be  a  lien  and 
charge  upon  the  estate  of  said  Frederick  Rollwagen,  deceased,"  etc. 


ROLLWAGEN  v.  POWELL.  218 

FIRST  DEPARTMENT,  JULY  TERM,  1876. 

On  the  19th  of  October,  1875,  Doctors  Powell  and  Purdy  made 
a  petition  to  the  surrogate  of  the  city  and  county  of  New  York, 
presented  on  the  twenty-first  of  October,  for  an  order  directing  the 
receiver  of  the  estate  of  Frederick  Rollwagen  to  pay  them  the  sum 
of  $1,080  out  of  the  moneys  collected  from  the  real  estate  of 
deceased,  and  in  their  petition  set  forth,  among  other  things,  their 
petition  to  the  Supreme  Court,  the  order  of  reference  therein,  the 
making  and  filing  of  the  referee's  report,  and  the  order  of  the 
Supreme  Court  thereon  of  September  29,  1875. 

On  December  31,  1875,  the  surrogate  made  an  order  thereon, 
that  said  Frederick  Rollwagen,  Jr.,  the  receiver,  pay  said  Doctors 
Powell  and  Purdy  the  full  amount  of  their  claim,  amounting  "  in 
the  whole  to  the  sum  of  $1,080." 

From  this  order  of  the  surrogate  this  appeal  is  taken 

Henry  L.  Clinton,  for  the  appellants. 

Lemuel  Skidmore,  for  the  respondents  Powell  and  Purdy. 

BBADY,  J. : 

The  examination  of  the  widow  as  to  her  condition  having  been 
necessary,  and  all  the  parties  to  the  action  having  consented  to  an 
order  therefor,  Messrs.  Powell  and  Purdy,  who  are  physicians,  were 
duly  appointed  to  attend  upon  and  examine  her,  in  conjunction 
with  her  family  physician.  It  was  also  provided  by  the  order  that 
their  compensation  should  be  allowed  as  a  charge  against  the  estate 
of  Frederick  Rollwagen,  deceased.  The  respondents,  Powell  and 
Purdy,  did  what  they  were  required  to  do,  and  in  all  respects  com- 
plied with  the  order  of  the  court  appointing  them.  This  having 
been  done,  they  applied  for  compensation,  and  gave  due  notice  of 
that  proceeding  to  all  the  parties  in  the  action,  and  to  William  A. 
Seaver,  Esq.,  who  was  then  the  special  administrator  of  the  estate, 
and  upon  that  application,  by  consent  of  all  the  parties  to  the 
action,  the  matter  was  referred  to  William  A.  Duer,  Esq.,  to  take 
the  necessary  proofs  and  report  the  same  to  the  court  with  his 
opinion  thereon.  Due  notice  of  the  proceedings  before  him  was 
given  to  all  the  parties  in  the  action,  the  proofs  were  taken,  and 
the  report  filed  and  confirmed  after  due  notice  to  all  the  parties 


214  KOLLWAGEN  v.  POWELL. 

FIRST  DKPAIITMKNT,  JULY  TEKM,  1876. 

interested.  It  was  also  adjudged  and  decreed,  by  order  of  confirma- 
tion, that  the  sums  named  should  be  a  lien  and  a  charge  upon  the 
estate  and  paid  out  of  it,  the  rents  or  income  and  profits  thereof. 
All  this  was  done  before  the  15th  March,  1875,  except  the  making 
and  filing  of  the  report  of  Mr.  Duer,  which  bears  date  the  20th 
March,  1875.  The  respondents  Powell  and  Purdy  had,  therefore, 
been  selected,  had  discharged  their  duties,  and  their  compensation, 
whatever  it  might  be,  had,  by  virtue  of  the  order  appointing  them, 
become  a  charge  upon  the  estate  of  Frederick  Rollwagen.  There 
was  no  appeal  taken  either  from  that  or  the  subsequent  order  con- 
firming the  referee's  report,  and  the  latter  order,  so  far  as  it 
decreed  the  payment  of  the  compensation  out  of  the  estate,  was 
only  a  continuation  of  the  first  order  which  declared  that  it  should 
be  a  charge  thereupon.  On  the  15th  March,  1875,  the  action  in 
which  the  orders  were  made  was  discontinued  by  order  of  the 
court,  but  no  notice  of  such  proceeding  was  given  to  the  respond- 
ents Powell  and  Purdy,  and  it  does  not  appear  that  the  court  was 
then  advised  of  the  outstanding  claim  of  the  respondents  Powell 
and  Purdy,  or  of  the  proceeding  then  pending  to  ascertain  its 
effect.  It  is,  on  the  contrary,  quite  evident  that  the  matter  was 
not  revealed,  and  there  is  no  pretense  that  it  was.  The  respond- 
ents Powell  and  Purdy  having  been  selected,  by  order  of  this  court, 
for  an  investigation  in  a  proceeding  which  has  for  centuries  formed 
a  part  of  the  jurisprudence  of  England  (see  Exparte  Aiscough,  2  P 
Williams,  591 ;  Exparte  Bellett,  7  Cox,  297 ;  Coke  Litt,  8  C. ;  also, 
article  in  Daily  Register  Jan.  29,  30,  31,  1874,  where  cases  are  col 
lated),  became  quasi  officers  of  the  court,  clothed  with  extraordi- 
nary powers,  and  invested  with  duties  of  a  high  and  delicate  char- 
acter, requiring  vigilance,  promptness,  and  ability.  It  was  not 
intended  that  they  should  be  dependent  upon  the  contingency  ot 
an  action  for  their  compensation,  and  hence  it  was  made  a  charge, 
in  anticipation,  upon  the  estate.  This  was  done  by  consent  of  all 
the  parties  on  which  the  order  was  founded.  They  became,  there- 
fore, quasi  parties  to  the  action  in  whose  favor  a  decree  had  been 
entered,  and  the  discontinuance  as  to  them  was  therefore  a  nullity, 
inasmuch  as  they  were  not  notified  of  the  proceeding  by  which  it 
was  accomplished.  It  was  determined  in  favor  of  the  respondents 
Powell  and  Purdy  that  they  should  be  paid  the  amount  awarded, 


ROLLWAGEN  v.  POWELL.  215 

FIRST  DEPARTMENT,  JULY  TERM,  1876. 

and  they  had  a  judgment  therefor  against  the  estate,  ita  income 
and  profits.  The  power  of  the  surrogate  to  decree  the  payment  of 
such  a  demand  may  be  questionable,  because  it  was  not  a  debt  or 
demand  against  the  testator,  or  against  the  executor  or  personal 
representative,  and  it  is  over  such  demands  only  that  the  surrogate 
possesses  the  limited  powers  given  by  statute.  Debts  created  by 
act  of  the  testator  or  intestate,  or  his  executor  or  administrator. 
(Redfield  on  Surrogates,  pp.  21,  306,  and  cases  cited.)  The  demand 
of  the  respondents  Powell  and  Purdy  was  not  a  debt  created  by 
either  of  these  persons,  but  a  charge  made  by  order  of  the  court, 
which  was,  in  effect,  an  appropriation  of  the  estate  pro  tanto  to  its 
payment.  The  order  of  the  surrogate  was  proper  doubtless,  as 
matter  of  form,  to  reach  the  funds  of  the  estate  in  the  hands  of  the 
special  administrator  appointed  by  him,  although  this  court  could 
have  ordered  its  payment  directly  out  of  the  funds  in  the  hands  of 
the  special  administrator.  At  all  events  no  harm  has  been  done, 
predicated  as  it  was  of  a  decree  of  this  court.  The  service  ordered 
by  this  court,  and  to  which  it  related,  was  necessary  in  the  adminis- 
tration of  justice,  and  one  the  expenses  of  which,  like  the  appoint- 
ment of  a  receiver  or  special  administrator,  should  be  paid  out  of 
the  estate,  because  the  result  related  to  the  whole  and  not  to  a  por- 
tion of  it,  and  was  important.  If  the  widow  were,  in  other  words, 
pregnant,  and  a  child  were  born  alive,  it  would  increase  the  num- 
ber of  heirs  and  diminish  the  share  of  each.  All  were  interested 
in  the  proceeding,  therefore,  and  each  should  contribute  to  the 
expense.  Assuming  the  respondents  Powell  and  Purdy  to  be 
quasi  officers  of  the  court,  and  placing  them  upon  the  same  plane 
with  receivers,  they  should  be  paid  out  of  the  common  fund,  and 
such  was  the  order  in  this  case.  Granting  the  position  sug- 
gested, the  discontinuance  would  not  affect  them,  because  the 
receiver  could  not  be  prejudiced  by  such  a  proceeding  as  to  his 
allowances,  whether  the  funds  were  in  his  hands  or  on  deposit  to 
the  credit  of  the  action. 

For  these  reasons  the  order  appealed  from  should  be  affirmed, 
but  without  costs. 

The  questions  considered  are  novel,  and  diligent  search  has  failed 
to  reveal  adjudications  in  which  they  have  been  considered  or 


216       PEOPLE  EX  KKL.  v.  N.  Y.  COTTON  EXCHANGE. 
FIRST  DEPARTMENT,  JULY  TERM,  1876. 

passed  upon.     The  counsel  and  the  court  have  labored  in  rain,  it 
would  seein,  on  the  subject. 
Ordered  as  declared.     Order  to  be  settled  by  BRADY,  J. 

DAVIS,  P.  J.,  concurred. 

DANIELS,  J.,  concurred,  except  as  to  denial  of  costs  to  respondent*. 

Order  affirmed,  without  costs. 


THE  PEOPLE  EX  BEL.   JOHN  H.  ELLIOTT,  KESPONDENT,  t>. 
THE  NEW  YOKE  COTTON  EXCHANGE,  APPELLANT. 

Corporation —  Power  to  adjust  controversies  between  members  —  Improper  conduct  — 
— appeal  to  court  to  determine  right  to  membership  is  not  —  Expulsion  of  member. 

Where  the  charter  of  a  corporation  declared  its  purpose,  among  other  things,  to 
be  "  to  adjust  controversies  between  its  members  and  to  establish  just  and  equit- 
able principles  in  the  cotton  trade,"  and  gave  it  power  to  make  all  proper  and 
needful  by-laws,  not  contrary  to  the  Constitution  and  laws  of  the  State  of  New 
York  or  of  the  United  States;  and  "to  admit  new  members  and  expel  any 
member  in  such  manner  as  may  be  provided  by  the  by-laws;  "  and  the  by-laws 
provided  for  expulsion  for  improper  conduct,  but  did  not  state  what  should 
be  considered  as  such: 

Held,  that  there  being  in  the  charter  or  by-laws  of  the  corporation,  no  express  or 
implied  authority  to  determine  who  was  the  owner  of  a  right  to  a  membership 
in  dispute,  a  member  was  not  guilty  of  improper  conduct  warranting  his 
expulsion,  for  resorting  to  the  courts  to  prevent  the  corporation  from  disposing 
of  such  a  right  claimed  by  him. 

That  in  refusing  to  submit  to  a  report  against  his  title,  a  member  was  not  acting 
in  antagonism  to  the  corporate  power  of  "  adjusting  controversies  between  its 
members"  or  of  "establishing  just  and  equitable  principles  in  the  cotton 
trade." 

That  his  right  to  appeal  to  another  tribunal,  if  to  be  foreclosed,  should  be  so  by 
explicit  contract  or  agreement  (not  shown  in  this  case),  not  by  mere  construction 
of  language  employed  in  a  by-law,  or  by  implication  from  something  contained 
in  it;  for  forfeitures  depend  upon  clear  and  explicit  language,  and  are  even  then 
looked  upon  with  disfavor,  and  the  presumption  should  be  against  the  power 
to  expel,  except  for  the  causes  recognized  in  the  adjudged  cases. 

APPEAL  from  an  order  made  at  Special  '\  erm,  sustaining  a  demurrer 
to  a  return  to  a  writ  of  mandamus  requiring  the  defendant,  its  board 


PEOPLE  EX  BEL.  v.  N.  Y.  COTTON  EXCHANGE.       217 

FIKST  DEPARTMENT,  JULY  TERM,  1876. 

of  officers  and  managers  to  rescind  an  order  for  the  expulsion  of  the 
relator  and  restore  him  to  his  membership,  or  show  cause,  etc. 

The  facts  set  out  in  the  return  were  briefly  as  follows :  In  1873 
the  relator  was  a  member  of  the  Cotton  Exchange.  John  H.  Val- 
entine, also  a  member,  was  in  default  upon  a  contract,  by  reason  of 
which  default  the  by-laws  provided  a  proceeding  to  dispose  of  his 
right  of  membership  to  make  good  the  amount  due  upon  his  con- 
tracts. While  the  proceeding  was  pending,  the  relator  appeared 
before  the  appropriate  committee  having  the  matter  in  charge,  and 
made  a  claim  that  he  owned  the  right  of  membership  of  said  John 
H.  Yaleutine,  by  virtue  of  a  bill  of  sale.  The  board  of  managers 
thereupon  referred  the  claim  of  the  relator  to  such  right  of  mem- 
bership to  its  supervisory  committee,  to  take  evidence  upon  oath  in 
relation  to  the  claim,  and  report  thereon.  Notice  of  the  reference 
was  given  to  the  relator,  and  he  appeared  and  was  personally 
examined  under  oath,  in  relation  to  his  claim.  He  also  called  the 
said  John  H.  Valentine,  and  caused  him  to  be  examined  as  a  wit- 
ness, to  sustain  his  claim. 

The  committee  took  the  testimony  and  reported  thereon  to  thu 
board  of  managers,  who  declared  the  transfer  of  the  membership  to 
the  relator  void,  and  gave  him  notice  thereof.  It  then  continued 
its  proceedings  against  the  said  John  H.  Valentine,  and  directed  a 
sale  of  his  right  of  membership.  The  relator  thereupon  brought 
an  action  in  the  Supreme  Court  to  restrain  the  Cotton  Exchange 
from  selling  the  said  right  of  membership,  on  the  ground  that  it 
was  his,  and  obtained  an  injunction  restraining  the  sale.  All  the 
proceedings  of  the  Cotton  Exchange  against  the  relator  to  expel 
him  were  had  in  pursuance  of  its  charter,  by-laws,  rules  and  regu- 
lations. He  put  in  an  answer  to  the  complaint  made  against  him, 
had  notice  of  the  meeting  of  the  committee  in  reference  to  the 
complaint,  appeared  before  it,  and  admitted  before  it  that  he  knew 
the  right  of  membership  of  John  H.  Valentine  was  advertised  pur- 
suant to  the  resolution  of  the  board  of  managers,  and  that  the  pro- 
ceedings leading  to  the  advertisement  for  sale,  were  done  and  had 
in  pursuance  of  the  provisions  of  the  by-laws ;  that  he  knew  one 
of  the  purposes  of  the  Exchange,  was  to  settle  within  itself  contro- 
versies between  members,  and  that  each  member  bound  himself  on 
signing  the  constitution  to  abide  by  all  rules,  by-laws  and  regula 
HUN— VOL.  VEIL  28 


218       PEOPLE  EX  BEL.  v.  N.  Y.  COTTON  EXCHANGE. 
FIRST  DEPARTMENT,  JULY  TERM,  1876. 

tions  of  the  defendant.  The  committee  thereupon  made  a  report, 
on  receiving  which  relator  was  expelled  by  a  vote  of  fifteen  ayes  to 
three  nays. 

William  Tracy  and  William  M.  Evarta,  for  the  appellant. 
John  A.  Foster,  for  the  relator. 

BRADY,  J. : 

John  H.  Valentine,  a  member  of  the  appellant's  corporation, 
was  expelled,  and  it  was  claimed  as  a  result  of  that  proceeding  that 
his  right  of  membership  was  forfeited,  and  became  the  subject  of 
sale  by  them. 

The  relator  asserted  his  ownership  of  that  right,  and  the  com- 
mittee charged  with  the  investigation  thereof  decided  adversely  to 
him. 

He  then  commenced  an  action  against  the  appellants,  and  obtained 
an  injunction  restraining  them  from  selling  the  right.  For  this  act 
he  was  arraigned  and  expelled.  The  committee  reported  on  the 
subject,  among  other  things,  as  follows : 

"  That  John  H.  Elliott  claims  to  be  entitled  to  said  seat  through 
a  bill  of  sale  thereof,  from  said  John  H.  Valentine ;  that  during  the 
progress  of  the  proceedings,  which  culminated  in  the  advertisement 
of  the  seat  of  said  John  H.  Valentine  for  sale,  the  said  John  H. 
Elliott  was  fully  and  perfectly  cognizant  thereof;  that  prior  to  the 
report  of  your  committee,  which  proposed  the  resolution  directing 
the  sale  of  said  seat,  the  said  John  H.  Elliott  had  an  opportunity 
afforded  him  to  prove  his  claim  to  said  seat,  which  he  essayed 
to  do,  but  he  failed  to  so  establish  to  the  satisfaction  of  your 
committee. 

"  That  the  injunction  which  John  H.  Elliott  caused  to  be  served 
upon  the  Exchange,  had  for  its  purpose  to  prevent  a  sale  of  the 
seat  of  John  H.  Valentine,  which  sale  had  been  directed  by  a  reso- 
lution of  your  board,  based  upon  proceedings  to  that  end,  done  and 
had  in  strict  conformity  with  the  provisions  of  your  by-laws. 

We  therefore  report  that,  in  our  opinion,  John  H.  Elliott  has 
been  guilty  of  improper  conduct,  as  alleged  in  the  complaint  against 
him,  and  that  in  causing  the  aforesaid  injunction  to  be  served 


PEOPLE  EX  REL.  v.  N.  Y.  COTTON  EXCHANGE.       219 
FIRST  DEPARTMENT,  JULY  TERM,  1876. 

on  the  Exchange,  he  has  acted  in  violation  of  the  by-laws  and 
charter  of  your  Exchange,  and  of  the  obligations  which  he  assumed 
when  he  signed  the  charter  and  by-laws,  and  in  contravention  of 
one  of  the  main  purposes  for  which  this  Exchange  was  established, 
'to  adjust  controversies  between  its  members.' 

"  We  therefore  offer  the  following  resolution  : 

"Resolved,  That  John  H.  Elliott  be,  and  he  hereby  is,  expelled 
from  membership  in  the  New  York  Cotton  Exchange." 

The  charter  of  the  appellants  gives  them  power  to  make  all 
proper  and  needful  by-laws  not  contrary  to  the  Constitution  and 
laws  of  the  State  of  New  York  or  of  the  United  States,  and  to 
expel  any  member  in  such  manner  as  may  be  provided  by  the  by- 
laws. The  by-laws,  on  the  subject  of  expulsion,  contain  a  section 
which  is  as  follows  : 

"Section  1.  If  complaint  of  improper  conduct  is  made  against 
ft  member  of  the  Exchange,  it  must  be  in  writing,  and  addressed  to 
the  supervisory  committee,  specifying  the  particular  act  complained 
of,  together  with  all  the  documentary  evidence  bearing  on  the  case 
that  the  complainant  can  furnish,  together  with  a  list  of  the  wit- 
nesses he  desires  to  be  examined  on  said  complaint." 

And  it  is  under  this  by-law  only  that  the  power  of  expulsion  is 
claimed  for  the  cause  alleged.  The  question  to  be  disposed  of  will 
be  considered  on  the  assumption  that  the  by-law  is  authorized  and 
in  effect. 

It  will  be  perceived  that  it  is  not  stated  specifically,  in  any  one 
or  more  respects  in  this  action,  what  would  or  would  not  be  regarded 
as  improper  conduct,  and  the  field  is  open,  therefore,  to  the  con- 
sideration of  such  acts  and  to  such  construction  upon  them,  as  the 
managers  present  and  voting  at  the  meeting  and  constituting  two- 
thirds  may  think  proper  to  investigate  or  adopt. 

There  is  neither  in  the  charter  of  the  appellants,  nor  in  the  by- 
laws, however,  any  express  authority  to  consider  and  determine 
who  is  the  owner  of  a  right  of  membership,  which  is  in  dispute. 
Whatever  may  be  their  power  over  matters  directly  connected  with 
the  business  which  prompted  their  organization,  or  with  the  adjust- 
ment of  controversies  between  its  members  or  the  establishment  of 
just  and  equitable  principles  in  the  cotton  trade,  or  acquired  by 
voluntary  submission  to  them  or  their  committees  under  the  charter 


220       PEOPLE  EX  REL.  u.  N.  Y.  COTTON  EXCHANGE. 
FIRST  DEPARTMENT,  JULY  TERM,  1876. 

and  by-laws,  there  is  no  express  authority  conferred  upon  them  to 
pass  upon  the  title  to  a  seat  among  them ;  nor  is  there  any  thing 
in  the  by-laws  to  which  our  attention  has  been  called  authorizing  it 
incidentally  or  by  implication. 

They  could  not,  therefore,  usurp  the  power  absolutely,  to  pass 
upon  the  relator's  claim,  and  when  he  resorted  to  the  courts  to  pre- 
vent them  from  disposing  of  his  property,  he  was  not  only  not  guilty 
of  improper  conduct,  but  asserting  a  right  secured  to  him  by  the 
fundamental  law  of  the  land.  It  may  be  that  a  member  would  be 
bound  by  the  decision  of  the  appellants  in  specified  cases,  which 
being  properly  the  subject  of  a  reasonable  by-law,  duly  authorized, 
would  be  recognized  as  lawful  within  the  principles  governing  them. 
(2  Kent's  Com.,  296 ;  Angell  &  Ames  Corp.,  §  247,  and  cases  cited ; 
People  ex  rel.  Thatcher  v.  The  N.  Y.  Coml.  Assn.,  18  Abb.  Pr., 
271.)  The  appellant,  however,  on  such  subjects,  can  take  nothing 
by  implication.  Forfeitures  depend  upon  clear  and  explicit  language, 
and  are  even  then  looked  upon  with  disfavor.  Expulsions  from  a 
corporation  should  not  be  accomplished  by  hurried  and  incomplete 
investigation. 

A  member  of  a  corporation  may  so  hedge  himself  in  by  agree- 
ment as  to  yield  the  protection  which  one  seeks  in  the  ordinary 
affairs  of  life,  and  enlarge  the  authority  that  may  be  used  against 
him,  but  when  it  is  said  he  has  done  so,  it  should  appear  beyond 
all  reasonable  doubt. 

The  presumption  should  be  against  the  power  to  expel  except  for 
the  causes  recognized  by  the  adjudged  cases  ( White  v.  Brownell, 
4  Abbott's  Pr.  [N.  S.],  192),  because  it  is  in  the  nature  of  a  for- 
feiture, which  the  law  does  not  favor.  The  right  to  appeal  to  another 
tribunal,  if  to  be  foreclosed,  should  be  so  by  explicit  contract  or 
agreement,  not  by  mere  construction  of  language  employed  in  a 
by-law,  or  by  implication  from  something  contained  in  it ;  when  this 
power  is  assumed,  and  upon  either  of  these  elements,  and  there  is 
any  doubt  of  its  existence,  it  should  be  rejected  in  the  administra- 
tion of  the  law. 

This  seems  to  be  just  doctrine.  The  power  should  be  unquestion- 
able. When  the  relator  refused  to  submit  to  the  report  against  his 
title,  he  was  not  acting  in  antagonism  to  the  power  of  the  appel- 
.ant  of  "  adjusting  controversies  between  its  members,"  or  of  "  estab- 


PEOPLE  EX  y.iv  r.  N.  Y.  COTTON  EXCHANGE.       221 


FnMT  £>BPAitTMENT,   JULY  TERM,    1876. 


Hairing  just  and  equitable  principles  in  the  cotton  trade,"  nor  was 
he  rebelling  against  the  judgment  pronounced  against  Valentine, 
for  which  express  provision  was  made  in  the  by-laws. 

He  had  no  controversy  with  any  member  or  officer.  He  said 
simply,  you  cannot  sell  the  membership  of  Yalentine  because  it 
belongs  to  me,  and  I  do  not  admit  your  authority  to  dispose  of  my 
rights  in  regard  to  it.  In  this  he  was  correct,  and  the  appellant  in 
error.  In  the  case  of  the  People  ex  rel.  Thatcher  v.  The  N.  Y. 
Coml.  Assn.  (18  Abb.  Pr.,  271),  expulsion  was  authorized  if  the 
member  was  guilty  of  willfully  violating  the  charter  or  by-laws  of 
the  association,  or  guilty  of  fraudulent  breach  of  contract,  or  other 
gross  misconduct,  and  the  charge  was  of  obtaining  goods  by  false 
pretenses.  It  bears  no  analogy  to  the  case  on  hand.  Here  there  is  no 
provision  In  the  by-laws  for  the  trial  of  the  title  to  a  seat,  and  there 
is,  therefore,  in  refusing  to  submit  to  the  report,  no  violation  of  the 
by-laws.  There  is  here  no  charge  either  involving  moral  turpitude 
or  of  fraudulent  conduct  of  any  kind. 

The  act  complained  of  is  one  confessedly  correct,  unless  in  viola- 
tion of  some  compact  by  which  the  right  to  do  it  was  surrendered, 
which  has  not  been  shown  as  already  suggested.  The  order  made 
at  Special  Term  was  for  these  reasons  proper.  The  representa- 
tives of  the  appellants  having  the  matter  in  charge  have  acted,  no 
doubt,  upon  convictions  conscientiously  entertained  both  as  to  their 
power  and  the  injurious  conduct  of  the  relator,  but  the  best  of 
mankind  may  err  in  judgment. 

Order  affirmed,  with  ten  dollars  costs,  and  the  disbursements  of 
this  appeal. 

DAVIS,  P.  J.,  and  DANIELS,  J.,  concurred  in  the  result. 
Order  affirmed,  with  ten  dollars  costs  and  disbursements 


CALVO  v.  DAVIES. 


FIRST  DEPARTMENT,  JULY  TERM,  1876. 


LOUISA  F.  OALVO,  APPELLANT,  v.  THOMAS  A.  DAVIES, 
IMPLEADED  WITH  OTHERS.  RESPONDENT. 

Principal  and  surety  —  Mortgage  —  Agreement  to  extend  between  holder  and  grantet 
ccwnaiuing  to  assume,  made  without  consent  of  grantor  (mortgagor)  —  discharge* 
mortgagor. 

Where  a  party  by  deed  assumes  the  payment  of  a  mortgage  executed  by  his 
grantor,  he  becomes  the  principal  debtor,  and  the  relation  created  between  him 
and  his  grantor  is  that  of  principal  and  surety.  Such  deed  is  notice  to  a  subse- 
quent holder  of  the  mortgage  of  this  relation,  and  an  extension  of  the  time  of 
payment  by  such  holder,  even  with  the  express  understanding  that  the  bond 
and  mortgage  shall  remain,  in  every  other  respect,  unaffected  by  said  agree- 
ment, when  made  without  the  consent  of  such  grantor,  discharges  him  from 
all  liability  to  the  holder  of  the  mortgage. 

The  case  of  Perkins  v.  Squires  (1  N.  Y.  S.  C.,  620),  so  far  as  it  conflicts  with  the 
above,  overruled. 

APPEAL  from  an  order  made  at  Special  Term,  sustaining  a 
demurrer  to  a  complaint,  on  the  ground  that  it  did  not  state  facts 
eufficient  to  constitute  a  cause  of  action. 

The  action  was  to  foreclose  a  mortgage  on  real  property,  executed 
March  8,  1869,  by  the  defendant  Thomas  A.  Da  vies  to  one  Augus- 
tus F.  Smith  for  $9,750,  made  payable  March  8,  1872,  in  accord- 
ance with  the  terms  and  conditions  of  a  bond  accompanying  it 
made  by  said  Davies.  The  mortgage  is  now  held  by  the  plaintiff 
by  virtue  of  a  certain  assignment  of  the  same. 

The  defendant  Thomas  A.  Davies  and  his  wife,  Maria  Davies, 
conveyed  the  mortgaged  premises  to  the  defendant  Charles  P. 
Leslie,  by  deed,  dated  November  29,  1871,  subject  to  the  lien  of 
the  mortgage  ;  and  the  said  Charles  P.  Leslie  by  the  terms  of  the 
deed  covenanted  and  assumed  to  pay  the  said  mortgage. 

While  Leslie  was  the  owner  of  the  mortgaged  premises,  the  plain- 
tiff, by  agreement  under  seal,  dated  November  21,  1872,  extended 
the  time  of  the  paymon!  of  fhe  bond  and  mortgage  until  October 
15,  1874,  providing  therein  that  it  was  with  the  express  under- 
standing that  the  said  bond  and  mortgage  should  remain,  in  every 
other  respect,  unaffected  by  such  agreement. 

The  defendant  Davies,  the  original  bondsman  and  mortgagor, 
was  not  a  party  to  said  agreement,  and  such  extension  of  time  wai 
made  without  his  knowledge  or  consent. 


CALVO  v.  DA  VIES.  223 


FIBST  DEPARTMENT,  JULY  TEEM,  1876. 


The  plaintiff,  in  her  action  to  foreclose  the  mortgage,  sought  to 
recover  judgment  against  the  defendant  Thomas  A.  Davies  upon 
his  bond  for  any  deficiency  resulting  from  the  sale  of  the  mortgaged 
premises.  To  the  complaint  the  defendant  Davies  interposed  a 
demurrer,  that  it  did  not  state  facts  sufficient  to  constitute  a  cause 
of  action. 

F.  R.  Coudert,  for  the  appellant. 

Henry  E.  &  Julien  T.  Dames,  for  the  respondent. 

BBADY,  J.  : 

The  views  expressed  by  Justice  VAN  BKUNT  are  correct.  The 
defendant  Leslie  having  assumed  the  payment  of  the  mortgage 
executed  by  the  defendant  Davies,  became  a  principal  debtor,  and 
the  relation  created  between  him  and  his  grantor,  Davies,  was  that 
of  principal  and  surety.  The  record  of  the  deed  of  Davies  to 
Leslie  was  notice  of  this  relation  to  the  plaintiff  herein,  who  holds 
the  mortgage  by  assignment.  It  follows  that  the  plaintiff,  having 
extended  the  time  of  payment  for  Leslie,  discharged  Davies,  the 
principal.  (Lawrence  v.  Fox,  25  N.  Y.,  268 ;  Burr  v.  Beers,  24 
id.,  178 ;  Billington  v.  Wagoner,  33  id.,  31,  and  cases  cited  ;  Smith 
v.  Townsend,  25  id.,  479 ;  Garnsey  v.  Rogers,  47  id.,  233.)  The 
case  of  Perkins  v.  Squires  (1  N.  Y.  S.  C.,  620),  so  far  as  it  conflicts 
with  this  view,  is  overruled.  The  decision  in  that  case,  though  in 
seeming  collision  with  the  conclusion  herein  expressed,  in  fact  rests 
upon  the  proposition  that  it  did  not  appear  by  the  answer  whether 
the  extended  period  had  expired  or  not.  The  surety  cannot  be 
affected  by  any  reservation  contained  in  the  agreement  extending 
the  time,  unless  he  consented  to  it.  The  rule  is  absolute,  that  there 
shall  be  no  transaction  with  the  principal  debtor  without  acquaint 
ing  the  person  who  has  a  part  interest  in  it.  The  proposition  that 
the  creditor  can  enlarge  the  time  of  payment  and  protect  himselt 
by  reserving  his  rights  against  the  surety  in  the  agreement  for  the 
extension,  cannot  be  sustained  on  principle. 

Such  a  rule  would  abrogate  the  correlative  one  in  favor  of  tht» 
surety,  that  his  contract  cannot  be  enlarged  without  his  consent. 
It  would  be,  if  the  creditor  could  make  a  private  agreement  whn 
the  principal  debtor,  and  legally  extend  the  time  of  payment  bv  t 
reservation,  without  notice  to  the  surety. 


224  BOWERY  NATIONAL  BANK  t>.  MAYOR. 

FIRST  DEPARTMENT,  JULY  TERM,  1876. 

The  order  must  be  affirmed,  with  ten  dollars  costs  and  disburse- 
ments. 

DAVIS,  P.  J.,  and  DANIELS,  J.,  concurred. 

Order  affirmed,  with  ten  dollars  costs  and  disbursements. 


THE  BOWERY  NATIONAL  BANK,  APPELLANT,  v.  THE 
MAYOR,  ETC.,  OF  THE  CITY  OF  NEW  YORK,  RE- 
SPONDENTS. 

Injunction  restraining  city  from  confirming  an  assessment — no  defense  against  con- 
tractor entitled  to  his  pay  on  the  wnfirmation,  unless  diligence  is  shown  to  remove  it. 

"Where  a  contract  with  the  City  of  New  York  for  paving  a  street  provided  that 
the  city  would  pay  in  cash,  on  the  confirmation  of  the  assessment  to  be  laid 
for  said  work,  the  whole  of  the  money  accruing  to  the  other  party  under  the 
agreement ;  and  no  assessment  had  ever  been  laid  for  the  work,  the  city  and 
the  board  of  assessors  having  been  enjoined  by  the  court  in  an  action  by  the 
property  owners  from  confirming  the  assessment : 

Held,  in  an  action  to  recover  the  balance  due  on  the  contract,  that  when  the 
defendants  were  stopped  by  process  from  obtaining  the  funds,  all  they  could 
demand  was  a  reasonable  time  to  remove  the  impediment,  and  the  failure  to  do 
any  thing  to  remove  the  injunction  rendered  them  liable  for  the  plaintiff's 
claim. 

That  it  was  error  for  the  judge  to  leave  it  to  the  jury  to  find  the  fact,  whether  or 
not  the  assessment  had  not  been  confirmed  because  of  any  collusion,  fraud, 
negligence  or  other  improper  act  on  the  part  of  the  defendants,  for  the  facts 
being  undisputed,  the  question  of  reasonable  diligence  was  one  for  the  court, 
and  especially  where  its  subject-matter,  namely,  a  law-suit,  was  one  of  which 
the  court  could  take  judicial  cognizance  ;  and  the  plaintiff  was  entitled  to  its 
request  that  the  jury  be  instructed  to  render  a  verdict  in  its  favor. 

APPEAL  by  the  plaintiff  from  a  judgment  in  favor  of  the  defend- 
ants, entered  upon  the  verdict  of  a  jury. 

George  W.  Wingate,  for  the  appellant. 
A.  J.  Hequier,  for  the  respondents. 

BRADY,  J. : 

This  is  the  third  trial  of  this  action.     On  the  first  trial  the  plain- 
tiff had  judgment  which  was  reversed  by  the  General  Term. 


BOWERY  NATIONAL  BANK  v.  MAYOR.  225 

FIRST  DEPARTMENT,  JULY  TERM,  1876. 

A  new  trial  was  then  had,  at  which  the  complaint  was  dismissed, 
ind  the  judgment  thereupon  was  affirmed  by  the  General  Term. 
Their  decision  thereto  was  reversed  by  the  Court  of  Appeals,  and 
a  third  trial  was  had  in  which  the  defendant  obtained  a  verdict,  from 
which  this  appeal  is  taken.  On  the-second  trial  it  appeared  that 
the  defendants  contracted  with  the  Hamar  Wood  Preserved  Pave- 
ment Company,  of  which  the  plaintiffs  are  the  assignees,  to  regulate 
and  pave  One  Hundred  and  Twenty-eighth  street,  from  Second  to 
Sixth  avenue,  for  $65,588.40,  of  which  they  have  paid  $46,102.28, 
leaving  due  $19,758.12  with  interest ;  that  the  usual  certificate  that 
there  was  no  fraud  in  the  contract  was  given  by  the  commissioners 
under  chapter  580,  Laws  of  1872,  which  was  rendered  necessary  by 
reason  of  some  irregularities  in  the  formation  of  the  contract.  That 
by  the  contract  it  was  stipulated,  that  the  contractor  should  not  be 
entitled  to  payment  until  the  completion  of  the  work  was  certified 
by  the  inspectors,  the  clause  relating  thereto  being  as  follows :  "And 
by  the  water  purveyor  or  other  officer  designated  by  the  said  com- 
missioner of  public  works,  whereupon  the  parties  of  the  first  part 
will  pay,  and  hereby  bind  themselves  and  their  successors  to  pay  to 
the  said  party  of  the  second  part  in  cash,  on  the  confirmation  of  the 
assessment  to  be  laid  for  said  work,  the  whole  of  the  moneys  accru- 
ing to  him  under  this  agreement." 

That  the  work  was  duly  performed,  and  its  completion  certified 
by  the  inspector,  December  13,  1870.  That  the  water  purveyor 
caused  the  work  to  be  entered  on  his  books  as  completed,  December 
10,  1870.  It  also  appeared  that  on  January  19, 1871,  a  preliminary 
injunction  was  obtained  by  property  owners,  returnable  January 
25,  1871,  restraining  the  defendants  "from  laying  or  confirming 
any  assessment  for  paving  said  street,  and  from  doing  any  act  or 
thing  toward  making  or  confirming  said  assessment,  or  making  the 
same  a  lien." 

That  a  demand  was  subsequently  made  upon  the  water  purveyor 
for  the  certificate,  who  refused,  stating  "  that  he  was  prevented  from 
giving  it  by  this  injunction  obtained  by  the  property  owners." 

That  the  assessment  for  this  work  was  advertised  and  forwarded 
to  the  boards  of  revision  and  correction,  September  11,  1871,  and 
the  matter  was  referred  by  them  to  the  Comptroller  to  assess  the 
HUN  — VOL.  VIII.  29 


226  BOWERY  NATIONAL  BANK  v.  MAYOR. 

FIRST  DEPARTMENT,  JOLT  TERM,  1876. 

expenses  upon  the  property  benefited,  as  required  by  chapter  580, 
Laws  of  1872,  section  5. 

In  addition  to  these  facts  the  plaintiff  proved  on  this  trial  as 
follows:  That  the  papers  in  the  injunction  suit  were  served  Janu- 
ary 24,  1871,  and  were  returnable  January  twenty-fifth.  That  the 
preliminary  motion  was  argued  March  20,  1871,  but  there  was  no 
record  in  the  corporation  counsel's  office  of  its  having  been  decided. 

That  nothing  further  was  done  by  defendants  until  October  24, 
1872,  when  the  contract  having  beconje  valid  by  the  action  of  the 
contract  commissioners,  an  order  was  obtained  to  show  cause,  on 
October  28, 1872,  why  a  supplemental  answer  should  not  be  served 
in  that  case,  setting  up  the  certificate  aforesaid  given  under  the  act 
of  1872  (supra),  and  the  injunction  be  modified  so  as  to  allow  the 
laying  of  the  assessment.  That  this  motion  was  not  regularly 
argued,  but  permission  was  granted  "  to  do  what  was  moved  for," 
and  such  a  supplemental  answer  was  served  November  23,  1872. 
That  prior  to  this  the  injunction  suit  had  been  placed  in  the  hands 
of  special  counsel,  but  nothing  further  was  ever  done  to  vacate  the 
injunction  or  dispose  of  the  issues,  it  never  having  been  noticed 
for  trial  or  placed  upon  the  calendar,  up  to  March  15,  1876. 

That  the  case  belonged  upon  the  equity  calendar  of  the  Common 
Pleas,  which  was  made  up  monthly  and  disposed  of  every  term. 
That  the  corporation  counsel,  his  two  assistants  and  managing  clerk 
knew  nothing  further  about  the  injunction  suit.  That  on  Septem- 
ber 24,  1875,  the  corporation  counsel  was  notified  that  as  the  injunc- 
tion was  used  as  a  defense  to  the  plainliff's  claim  herein,  they 
insisted  it  should  be  disposed  of  at  once,  and  that  he  still  took  no 
action  in  regard  to  it. 

It  also  appeared  that  Mr.  Strahan,  the  special  counsel  of  the 
defendants  in  this  case,  refused  to  give  his  reasons  why  the  case  was 
not  tried,  because  the  defendant  objected,  and  his  refusal  was  sus- 
tained by  the  court. 

Plaintiff  also  proved  that  it  was  customary  among  lawyers  to 
notice  a  case,  and  place  it  upon  the  calendar  as  soon  as  the  answer 
was  served.  And  that  if  not  noticed,  or  put  upon  the  calendar  by 
the  plaintiff,  it  could  be  dismissed  for  want  of  prosecution.  The 
defendants  offered  no  evidence  except  to  prove  that  the  pavement 
did  not  last,  which  was  excluded. 


BOWERY  NATIONAL  BANK  v.  MAYOR.  227 

FIRST  DEPARTMENT,  JULY  TERM,  1876. 

It  also  appears  that  the  court  refused  to  direct  a  verdict  for  the 
plaintiff  to  which  an  exception  was  taken,  and  left  the  matter  to 
the  jury  to  be  decided  as  to  whether  or  not  these  defendants  had, 
prior  to  the  commencement  of  this  action,  failed  to  defend  the 
action  in  the  Common  Pleas  with  sufficient  vigor,  or  had  been 
restrained  by  an  injunction  which  they  could  not  prevent.  This 
action  was  commenced  March  17,  1873.  The  action  of  Tooker,  in 
which  the  preliminary  injunction  was  obtained,  was  commenced 
January  24,  1871,  more  than  two  years  before  this  action  was 
brought.  February  twenty-third,  the  answer  was  served.  March 
eighteenth,  the  action  was  noticed  for  trial  by  the  plaintiff.  March 
twentieth,  the  motion  for  the  injunction  was  argued.  On  the  24th 
October,  1872,  the  order  was  obtained  by  the  defendants  to  show 
cause  why  the  assessment  should  not  be  laid,  and  a  supplemental 
answer  served.  November  twenty-third,  the  supplemental  answer 
was  served,  but  nothing  further  was  done.  The  disposition  made 
of  this  last  order  does  not  precisely  appear,  but  it  was  admitted  by 
Mr.  Strahan,  the  defendants'  counsel,  that  the  defendants  obtained 
what  they  moved  for.  This  must  mean  that  the  motion  was  in  all 
respects  successful.  If  it  were  not,  then  the  defendants  did  not 
obtain  all  they  moved  for.  This  motion  it  must  also  be  said  was 
predicated  of  the  validity  of  the  plaintiff's  claim,  the  payment  of 
which  was  only  deferred  on  account  of  the  assessment  not  having 
been  finished,  and  the  funds  not  being  in  hands,  therefore,  to  pay 
it.  It  was  shown,  as  appears  from  the  facts  narrated,  that  it  was 
within  the  province  of  the  defendants  to  have  ended  the  action 
commenced  against  them  by  Tooker,  by  the  exercise  of  ordinary 
diligence,  because  it  was  equitable  in  character  and  such  cases  were 
disposed  of  each  month  in  the  court  in  which  it  was  commenced. 

The  defendants  had  November,  December,  January,  February 
and  until  the  17th  of  March,  1873,  to  remove  the  injunction,  if  it 
had  not  already  been  modified  or  dissolved,  or  to  initiate  some  pro- 
ceeding thereto.  The  view  thus  stated  as  to  diligence,  is  independent 
of  the  effect  of  the  motion  of  October  twenty-fourth  (swpru\  to 
obtain  such  modification  of  the  injunction  as  to  allow  the  assess- 
ment to  be  laid,  and  which  seems  to  have  been  granted. 

The  delay  of  the  defendants,  thus  shown,  not  only  prevented  the 
assessment  but  it  prevented  the  plaintiffs  from  obtaining  the  certifi 


228  BOWERY  NATIONAL  BANK  v.  MAYOR. 

FIRST  DEPARTMENT,  JULY  TERM,  1876. 

cate  of  the  water  purveyor,  who  refused  to  give  it,  only  because  he 
was  restrained  by  injunction,  not  for  any  other  reason  for  aught 
that  appears  in  this  case.  This  action  was  tried  for  the  third  time 
on  the  15th  of  March,  1876,  and  it  must  be  borne  in  mind  that  the 
action  of  Tocker  was  then  in  statu  quo,  nothing  further  having  been 
done  in  it.  It  must  also  be  borne  in  mind  that  the  plaintiffs  were 
not  a  party  to  it,  and  could  not  control  it  in  any  way.  It  should 
not  be  forgotten  either,  that  the  defendants  knew  of  the  plaintiffs' 
demand,  because  it  was  mentioned  in  the  papers  prepared  on  the 
17th  of  September,  1872,  and  used  on  the  24th  of  October,  1872, 
and  acknowledged  to  be  a  valid  claim  against  them. 

When  the  appeal  in  this  case  in  the  Court  of  Appeals  was  decided, 
it  was  substantially  held,  in  reference  to  the  certificate  of  the  water 
purveyor,  tha4-.  the  plaintiffs  had  done  all  they  were  required  to  do, 
and  that  the  reiVsai  to  give  it  under  the  circumstances  was  unreason- 
able. The  question  involved  on  this  appeal  is,  whether  the  laches 
of  the  defendants,  i\  regard  to  the  Tooker  suit,  does  not  deprive 
them  of  the  defense,  that  the  assessment  had  not  been  laid  which 
was  contemplated  by  tho  i^i-eament  between  the  plaintiffs'  assignor 
and  them. 

The  learned  justice  pres;»?\.ag  on  the  trial  presented  it  as  a  ques- 
tion of  fact  to  the  jury  on  this  xrial,  stating  to  them,  that  if,  in  fact, 
the  injunction  remained  in  full  vvee  at  the  time  of  the  commence- 
ment of  this  action,  notwithstanding  the  exercise  of  proper  dili- 
gence and  effort  on  their  part  to  obtvi:  its  removal,  they  were  not 
liable.  The  learned  justice  also  suggvLtocl  that  the  question  arose 
as  to  why  the  assessment  had  not  been  «wfirmed,  whether  it  was 
because  of  any  collusion,  fraud,  negligent,  or  other  improper  act 
on  the  part  of  the  corporation. 

The  testimony  on  this  subject,  however,  wao  <v*l  one  way.  There 
was  no  conflict,  no  doubt,  and  the  finding  of  the  jury  that  reasona- 
ble diligence  characterized  the  defendants'  management  of  the 
Tooker  suit  was  unwarranted  by  the  evidence.  Bat  it  must  be 
said  further,  that  the  question  of  reasonable  diligence  i%  one  for  the 
court  and  not  for  the  jury  where  the  facts  are  undiluted,  and 
especially  where  its  subject-matter,  namely,  a  law-suit,  if  one  of 
which  the  court  can  take  judicial  cognizance.  (Alexander  v.  Par 
tons,  3  Lans.,  333,  337 ;  Wakeman  v.  Gowdy,  10  Bos.,  208.  218 , 


BOWERY  NATIONAL  BANK  «.  MAYOR.  229 

FIRST  DEPARTMENT,  JTILT  TERM,  1876. 

JBascomb  v.  Buffalo  and  State  L.  R.,  27  Barb.,  221 ;  Craig  v. 
Parkis,  40  N.  Y.,  181 ;  MoaUey  v.  Riggs,  19  Johns.,  72.)  Where 
no  time  of  performance  is  specified  in  a  contract,  the  act  to  be 
done  must  be  performed  within  a  reasonable  time ;  and  what  is  a 
reasonable  time  is  a  question  of  law.  (Parsons  on  Contracts,  2 
vol.,  173,  and  cases  cited;  Chitty  on  Contracts,  625,  and  cases 
cited.)  When  the  defendants  were  stopped  by  process  from  obtain- 
ing the  funds,  all  they  could  demand  was  a  reasonable  time  to 
remove  the  impediment.  Their  duty  in  that  respect  was  extended 
only  for  such  a  period.  The  work  having  been  done  for  the  city, 
and  properly  done,  and  the  amount  charged  for  it  having  been 
earned,  it  was  incumbent  upon  the  city,  in  good  faith  to  the  laborer, 
that  the  impediment  to  its  payment  should  be  removed  at  an  early 
day.  It  rested  entirely  with  them.  Several  months  elapsed  after 
the  contract  was  legalized  before  the  action  was  commenced,  and 
the  inactivity  principle  was  continued  down  to  the  time  of  this 
trial.  The  failure  to  do  any  thing  since  October,  1872,  legitimately 
bears  upon  the  question  of  want  of  diligence.  It  shows  that  the 
Tooker  suit  was  either  lost  to  view  or  left  as  a  barrier  to  the  claim 
herein  urged.  This  may  have  arisen  from  mere  oversight,  but  it 
matters  not  what  was  the  cause  ;  the  fact  is,  that  the  case  of  Tooker 
was  not  conducted  with  reasonable  diligence.  The  plaintiffs  were, 
therefore,  entitled  to  the  request  that  the  jury  be  instructed  to  ren- 
der a  verdict  in  their  favor,  which  was  refused,  and  the  judgment 
herein  should  therefore  be  reversed. 

There  are  no  questions  presented  on  behalf  of  the  defendants 
which  affect  this  view,  and  it  must  be  adopted. 

Ordered  accordingly,  with  costs  to  abide  event. 

DAVIS,  P.  J.,  and  DANIELS,  J.,  concurred. 
Judgment  reversed,  costs  to  abide  event 


230  INSLEE  y.  HAMPTON. 


FIRST  DEPARTMENT,  JULY  TERM,  1876. 


CHARLES  T.  INSLEE,  SUEVIVOB,  ETC.,  RESPONDENT,  t>.  ISAAC 
HAMPTON,  APPELLANT. 

Practice  —  Counter-claim  —  Separate  action  brought  therefor. 

A  party,  except  in  cases  commenced  in  a  Justice's  Court,  having  a  demand  against 
another  can  maintain  an  action  therefor,  although  at  the  time  an  action  is  pend- 
ing against  him  by  the  same  party,  wherein  he  could  have  set  up  such  demand 
as  a  counter-claim. 

APPEAL  by  the  defendant  from  a  judgment  entered  in  favor 
of  the  plaintiff  on  a  trial  at  the  Circuit,  under  the  direction  of  the 
justice. 

The  action  was  commenced  by  Napoleon  B.  Gardner  and  Charles 
T.  Inslee,  as  plaintiffs,  against  Isaac  Hampton.  Gardner  died  pend- 
ing the  action,  and  it  was  continued  in  the  name  of  Charles  T. 
Inslee,  as  survivor  of  himself  and  the  said  Napoleon  B.  Gardner, 
and  was  brought  to  recover  a  balance  of  $367.03  claimed  to  be  due 
from  defendant  to  plaintiff's  firm  on  the  following  facts:  In  October 
and  November,  1868,  the  defendant  consigned  to  plaintiff's  firm  a 
quantity  of  wool  and  also  butter  to  be  sold  on  commission,  and  drew 
against  the  same  on  plaintiff's  firm  for  the  sum  of  $1,850.  After- 
wards plaintiff's  firm  sold  the  property,  by  the  direction  and  con- 
sent of  defendant,  and  after  deducting  expenses,  commissions  and 
advances,  the  defendant  was  indebted  to  plaintiff's  firm  for  such 
balance.  The  venue  of  this  action  was  laid  in  the  city  and  county 
of  New  York. 

The  defendant  commenced  an  action  against  plaintiff's  firm,  lay- 
ing the  venue  in  Livingston  county  where  he  resided,  and  claiming 
to  recover  damages  for  misconduct  and  breach  of  agreement  against 
plaintiff's  firm  in  reference  to  the  sale  of  certain  wool  and  butter 
set  forth  in  the  complaint  in  such  action.  Such  damages  were 
claimed  to  amount  to  $1,700. 

The  defendants  in  that  action  (plaintiff's  firm)  answered  the  com- 
plaint, denying  the  same  in  toto,  and  setting  up  matters  of  defense 
merely. 

This  last  action  was  referred,  on  a  motion  to  change  place  of  trial, 
to  Hon.  James  L.  Angle,  of  Rochester,  to  try  and  determine. 


INSLEE  v.  HAMPTON.  231 

FIRST  DEPARTMENT,  JULY  TERM,  1876. 

The  defendant's  action  so  referred  was  tried  before  said  referee 
first,  and  on  such  trial  plaintiff's  firm  established  their  defense 
set  up  in  their  answer,  and  plaintiff's  complaint  therein  was  dis- 
missed, and  judgment  on  the  merits  given  for  plaintiff's  firm, 
with  costs. 

Afterward,  and  on  October  6th,  1874,  the  issues  in  this  action 
were  tried  before  Judge  DONOHTJE,  whereupon  the  defendant  herein 
interposed  a  supplemental  answer,  setting  up  said  judgment  upon 
the  referee's  report  in  favor  of  plaintiff's  firm  in  the  action  brought 
by  defendant,  as  a  defense  to  plaintiff's  action  in  this  suit. 

On  the  trial  plaintiff  proved  all  the  allegations  in  the  complaint 
in  this  action,  and  that  the  balance  claimed  —  $367.03,  with  interest 
from  July  8,  1869,  amounting  to  $136.35,  in  all  amounting  to 
$503.38  —  was  due  and  unpaid. 

No  objection  was  taken  to  any  testimony  given  or  offered  by 
plaintiff. 

The  defendant  then  offered  in  evidence  the  judgment  roll  in  the 
suit  wherein  he  was  plaintiff,  tried  before  said  referee,  which  was 
objected  to  as  not  being  proper  evidence  in  this  action,  and  as 
immaterial,  by  plaintiff's  counsel.  The  court  admitted  it.  The 
defendant  asked  the  court  to  direct  a  verdict  for  defendant.  The 
court  refused.  Defendant  excepted,  and  the  court  directed  a  ver- 
dict for  plaintiff,  to  which  defendant  excepted. 

From  the  statement  in  the  appellant's  points,  it  would  appear  that 
the  action  by  Hampton  was  the  first  brought.  From  that  of  the 
respondent,  that  the  one  by  Gardner  &  Inslee  was  the  first. 

H.  R.  Selden,  for  the  appellant. 
If.  Sheldon,  for  the  respondent. 

BRADY,  J. : 

The  defendant  herein  commenced  an  action  against  the  firm  of 
Gardner  &  Inslee,  of  which  the  plaintiff  Inslee  is  the  survivor, 
claiming  a  sum  to  be  due  arising  out  of  shipments  of  butter  and 
wool  to  them.  They  answered,  alleging  advances  upon  the  prop- 
erty, the  sale  thereof,  and  that  the  proceeds  did  not  amount  to 
enough  to  pay  the  advances  and  expenses.  They  did  not,  however, 


232  INSLEE  v.  HAMPTON. 

FIRST  DEPARTMENT,  JULY  TERM,  1876. 

present  the  excess  in  their  favor  either  as  a  set-off  or  counter-claim. 
They  also  commenced  this  action,  which  is  founded  upon  the  trans- 
actions mentioned,  claiming  the  excess  referred  to,  to  be  due  to 
them.  It  does  not  appear  which  of  these  actions  was  first  com- 
menced. The  referee,  in  the  defendant's  action,  reported  in  favor 
of  the  plaintiffs  herein,  finding,  among  other  things,  that  Gardner 
&  Inslee  duly  accounted  to  and  with  the  defendant  for  the  wool 
and  butter  and  the  proceeds  thereof,  and  all  of  the  same.  The 
defendant  herein  set  up  the  judgment  founded  upon  these  findings 
of  the  referee,  by  supplement  to  his  original  answer,  in  which  the 
pendency  of  his  action  was  interposed  as  a  defense.  There  can  be 
no  doubt  that  both  actions  related  to  and  were  predicated  of  the 
same  transactions.  There  can  be  no  doubt  either  that  the  plaintiff 
herein  and  his  then  existing  partner  could  have  litigated  the  claim 
herein  presented  in  the  defendant's  action,  and  taken  judgment  for 
it,  if  it  were  allowed,  because  it  was  the  subject  of  a  counter-claim. 
They  did  not  adopt  that  course,  and  the  question  presented  on  this 
appeal  is,  whether  or  not  the  claim  is  barred  by  the  omission  to  do 
it.  It  seems  to  be  settled  in  this  State  by  authority.  A  defendant 
is  not  bound  in  his  answer  to  set  up  a  demand  which,  from  its 
nature,  is  a  proper  subject  of  a  counter-claim.  He  may  elect  to 
enforce  its  recovery  in  a  separate  action.  (Halsey  et  al.  v.  Carter, 
\  Duer,  667.)  A  party  having  a  demand  against  another  may 
institute  an  action  thereupon,  although  at  the  same  time  an  action 
is  pending,  brought  against  him  by  his  debtor,  wherein  he  might  set 
up  his  demand  as  a  counter-claim.  (Lignot  et  al.  v.  Redding,  4 
E.  D.  Smith,  285.)  Justice  INGEAHAM  :  "  We  do  not  think  a  party 
having  a  claim  against  another  is  bound  to  await  the  tedious  motion 
of  such  debtor,  if  he  sees  fit  to  commence  a  suit  and  then  delay  its 
progress  so  as  to  prevent  the  real  creditor  from  obtaining  what  is 
due  to  him."  There  is  nothing  in  the  Code  (§§  149, 150)  requiring 
the  defendant  to  avail  himself  of  his  counter-claim  or  be  precluded 
from  maintaining  an  action.  The  preclusion  must  be  confined  to 
the  cases  specified  in  the  Revised  Statutes.  (2  R.  S.,  236,  §  57.) 
Welch  v.  Hazleton  (14  How.  Prf,  97)  and  these  cases,  are  those 
commenced  in  Justices'  Courts :  Douglas  v.  Hoag  (1  Johns,  283,  per 
SPKNCEB,  J.) ;  Lord  v.  Ostrander  (43  Barb.,  339).  The  cases  of 
Halsey  v.  Carter  and  Welch  v.  Hazleton  (supra),  are  approved  in 


PEOPLE  v.  KINGSLEY.  283 

• 
FIRST  DEPARTMENT,  JULY  TERM,  1876. 

Gillespie  v.  Torrance  (25  N.  Y.,  310).  It  is  not  necessary  to  con- 
sider what  would  be  the  legal  result  if  the  plaintiff  and  his  partner, 
had  pleaded  their  counter-claim  in  the  defendants'  action,  because 
it  was  not  done.  They  answered  by  denying  the  defendants' 
cause  of  action  and  succeeded.  For  these  reasons  the  judgment 
must  be  affirmed,  with  costs. 

DAVIS,  P.  J.,  and  DANIELS,  J.,  concurred. 
Judgment  affirmed,  with  costs. 


THE  PEOPLE  OF  THE  STATE  OF  NEW  YORK,  APPELLANT*, 
v.  WILLIAM  C.  KINGSLEY  AND  OTHERS,  RESPONDENTS. 

THE  PEOPLE  OF  THE  STATE  OF  NEW  YORK,  APPELLANTS, 
v.  WILLIAM  A.  FOWLER  AND  OTHERS,  RESPONDENTS. 

Acts   done  virtute  ojftcti — Venue  —  change  of — when  right  to,  absolute  and  not 

discretionary. 

An  action  against  a  public  officer  for  acts  done  virtute  offlcii  must  be  brought,  ao 
far  as  he  is  concerned,  in  the  county  where  the  cause  of  action,  or  some  part 
thereof,  arose.  It  is  an  absolute  right,  and  not  a  matter  of  judicial  discretion, 
and  he  cannot  be  deprived  of  this  statutory  right  by  joining  other  parties  as 
defendants. 

The  venue  must  first  be  correctly  laid,  and  then  the  usual  incidents  of  an 
action  may  occur ;  and  a  motion  may  be  made,  after  issue  joined,  to  change 
the  place  of  trial,  on  the  ground  of  the  impossibility  of  obtaining  an  impartial 
trial  in  the  county  designated ;  but  this  ground  is  no  answer  to  a  motion  before 
issue  joined  to  change  the  venue,  where  the  proper  county  has  not  been  desig- 
nated in  the  complaint 

APPEALS  from  orders  made  at  Special  Term,  changing  the  place 
of  trial. 

The  actions  were  both  brought  in  the  city  and  county  of  New 
York  (in  both  the  defendants  were,  some  of  them,  public  officers  in 
the  county  of  Kings,  and  the  others  certain  contractors  for  what  is 
known  as  the  Hempstead  reservoir),  to  recover  from  them  certain 
moneys,  alleged  to  have  been  obtained  by  such  contractors  by  the 
corrupt  collusion  and  confederation  of  such  officers,  with  the  said 
contractors. 

HUN— VOL.  VIII.         30 


234  PEOPLE  v.  KINGSLEY. 

FIRST  DEPARTMENT,  JULY  TERM,  1876. 

The  following  is  the  opinion  of  BARRETT,  J.,  referred  to  in  the 
opinion  of  BRADY,  J.,  below  : 

BARRETT,  J.  1.  The  question  is  not  whether  the  defendants 
Fowler,  Lowber  and  Bliss  were  public  officers  within  the  meaning 
of  the  Constitution,  but  whether  they  were  such  as  are  contem- 
plated by  section  124  of  the  Code.  That  they  were  public  officers  in 
the  latter  sense  there  can  be  no  doubt.  Their  duties  were  essen- 
tially public,  and  they  were  even  required  by  law  to  take  ati  oath 
of  office,  and  to  furnish  bonds  for  the  faithful  performance  of  their 
duties,  as  permanent  water  and  sewerage  commissioners.  (Laws  of 
1869,  chap.  97,  §  2.) 

2.  The  acts  complained  of  were  clearly  done  by  these  defendants 
in  virtue  of  their  offices.     It  was  wholly  from  such  offices  that 
they  derived  the  authority  to  do  what  is  charged  against  them  — 
and  that  is  the  test.     It  is  not  a  question  of  good  or  bad  faith,  and 
the  proposition  that  the  statute  covers  cases  of  neglect  or  ineffi- 
ciency alone,  is  not  sustained  either  upon  principle  or  authority. 
On  the  contrary,  it  is  well  settled  that  even  where,  in  doing  an  act 
within  the  limits  or  scope  of  his  authority,  the  officer  exercises  such 
authority  improperly  or  abuses  the  confidence  which  the  law  reposes 
in  him,  he  is  still  entitled  to  the  protection  of  the  statute.    {Brown 
v.  Smith,  24  Barb.,  419 ;    The  People  v.  Hayes,  7  How.,   248 ; 
Seek/    v.  Birdsall,  15   Johns.,  268;    The  People  v.  Tweed,    13 
Abb.  [N.  S.],  419,  which  is  directly  in  point,  and  is  decisive  of 
this  motion.)    Even  allegations  of  malice  and  "  wicked  combina- 
tion "  will  not  deprive  a  public  officer  of  the  protection  of  such 
statutes.     (Row  v.  Sherwood,  6  Johns.,  109.)     And  upon  principle 
this  is  the  just  rule,  for  otherwise  the  statute  would  always  be 
evaded  by  a  mere  averment  of  bad  faith,  e.  g.,  that  a  sheriff  levied 
on  A.'s  goods  under  execution  against  B.,  and  did  it  in  bad  faith, 
well  knowing  them  to  be  A.'s  goods. 

3.  In  one  of  the  cases  under  consideration,  the  cause  of  action 
•rose  in  Kings  county ;  in  the  other,  some  part  thereof,  indeed  the 
substantial  part  thereof,  arose  there. 

4.  The  defendants  cannot  be  deprived  of  their  statutory  right  by 
joining  other  parties  as  defendants.     The  right  is  absolute,  and  not 
%  matter  of  judicial  discretion.     If,  therefore,  a  public  officer  be 


PEOPLE  v.  KINGSLEY.  235 

FIRST  DEPARTMENT,  JULY  TERM,  1876. 

impleaded  for  acts  done  virtute  affioii,  the  suit  —  so  far  as  he  is 
concerned  —  must  be  tried  in  the  county  where  the  cause  of  action, 
or  some  part  thereof,  arose.  Any  other  rule  would  tend  to  nullify 
the  statute  ;  for  it  would  be  as  easy  to  join  other  parties  defendant 
as  to  plead  bad  faith,  and  that,  too,  without  intending  to  evade ; 
as,  for  instance,  to  join  with  a  sheriff  defendant,  the  plaintiffs  in 
the  execution,  who  directed,  or  the  indemnitors,  who  upheld  the  levy. 
5.  Lastly,  we  are  asked  to  retain  these  cases,  because  it  is  claimed 
that  a  fair  jury  trial  cannot  be  had  in  Kings  county.  But  that  is 
no  answer  to  the  motion.  Issue  has  not  been  joined,  and  we  can- 
not tell  whether  there  will  be  a  jury  trial.  For  aught  we  know, 
the  defendants  may  demur.  The  first  thing  to  be  done  is  to  place 
the  causes  in  the  county  where,  by  law,  the  defendants  have  a  right 
to  have  them.  When  an  issue  of  fact  is  there  joined,  it  will  be 
time  enough  to  invoke  subdivision  2  of  section  126  of  the  Code. 
Mason  v.  Brown  (6  How.,  481),  is  not  in  point,  for  the  reason  that 
issue  had  there  been  joined  ;  but  it  is  an  authority  for  the  rule  that 
motions  to  change  the  place  of  trial  for  the  convenience  of  witnesses 
can  only  be  made  after  issue  joined.  The  same  principle  applies 
to  motions  to  change  the  venue,  because  there  is  reason  to  believe 
that  an  impartial  trial  cannot  be  had.  The  motion  to  change  the 
place  of  trial  to  the  county  of  Kings  must  be  granted. 

John  E.  Parsons,  for  the  appellant. 
Roger  A.  Pryor,  for  the  respondents. 

BRADY,  J. : 

It  is  necessary  to  add  but  little  to  the  opinion  of  Justice  BARRETT, 
rendered  by  him  on  deciding  the  motion  to  change  the  venue  in 
these  cases.  Although  acts  of  fraudulent  combination  are  charged 
against  the  defendants  to  accomplish  a  condition  of  things  leading 
to  the  formation  of  the  contract  ultimately  made  with  Kingsley 
and  Keeriey,  nevertheless  the  gravamen  of  the  complaint  begins 
with  the  conduct  of  the  defendants  while  acting  officially,  because 
prior  to  that  time  the  alleged  scheme  had  not  been  consummated, 
And  could  not  be  without  the  contract  which  was  made.  The  same 
observation  applies  to  the  Hempstead  reservoir. 

The  contemplated  fraud  in  reference  thereto  was  not  initiated 


236  PEOPLE  w.  KINGSLEY. 

FIRST  DEPARTMENT,  JULY  TERM,  1876. 

nntil  Keeny  obtained  the  contract  alleged.  It  is,  it  may  be  said, 
wholly  immaterial  whether  these  contracts  were  the  result  of  a 
combination  antecedent  to  the  passage  of  the  acts  of  May  5,  1870, 
and  February  18,  1871,  and  the  action  of  the  common  council,  or 
subsequent  thereto,  if  characterized  properly. 

The  defendants'  responsibility  for  that  violation  of  duty  would 
be  the  same.  The  acts  which  form  the  basis  of  the  charges  pre- 
sented by  the  complaint  were  committed  virtute  qfficii. 

The  defendants  were  acting  as  public  officers  within  their  official 
sphere,  within  the  scope  of  their  authority,  when  the  contracts 
were  made,  and  this,  as  shown  by  Justice  BARRETT,  secures  to  them 
the  right  given  by  section  124  of  the  Code.  It  is  no  answer  to  an 
application  for  the  privilege  accorded  by  this  law,  that  the  plaintiffs 
cannot  have  a  fair  trial  in  Kings  county.  This  view,  which  is 
expressed  by  Justice  BARRETT,  is  sustained  by  the  authorities. 
(Moore  v.  Gardner,  5  How.  Pr.,  243 ;  Wood  v.  Hollister,  3  Abb. 
Pr.,  16,  note;  Hubbard  v.  National,  etc.,  11  How.  Pr.,  149 ;  The 
International,  etc.,  v.  Sweetland,  14  Abb.  Pr.,  240;  People  v. 
Tweed,  13  Abb.  [N".  S.],  426.)  Where  the  impossibility  of  obtain- 
ing an  impartial  trial  is  the  ground  of  a  motion  to  change  the  place 
of  trial,  it  should  not  be  made  till  after  issue  joined.  (2  Wait's 
Pr.,  630,  and  cases  cited.)  The  reason  of  the  rule  relates,  it  is 
true,  more  to  the  form,  perhaps,  than  the  substance.  It  is  that  the 
action  must  be  placed  first  in  the  proper  county. 

The  starting  point  must,  in  other  words,  be  correctly  designated, 
and  then  the  usual  incidents  of  an  action  may  occur. 

When  the  cause  is  transferred  to  Kings  county,  therefore,  the 
plaintiffs  may  then  in  turn  ask  for  a  change  of  the  place  of  trial 
to  some  other  county,  in  which  there  will  be  no  prejudice  from 
which  they  can  suffer.  The  cause  must  be  at  issue  then,  how- 
ever, which  is  not  the  case  now,  and  the  character  of  the  issues  may 
require  serious  considerations  in  determining  the  propriety  of  another 
change  of  the  place  of  trial.  For  these  reasons,  we  think  the  order 
appealed  from  must  be  affirmed,  with  ten  dollars  costs,  and  the 
disbursements  of  the  appeal. 

DAVIS,  P.  J.,  and  DAOTKLS,  J.,  concurred. 

Order  affirmed,  with  ten  dollars  costs  and  disbursements. 


HAUCK  v.  CRAIGHEAD.  237 

FIRST  DEPABTMENT,  JULY  TEEM,  1876. 


MINNIE   HAUCK,   APPELLANT,  v.   SAMUEL   CRAIGHEAD 

AND  OTHERS,  EXECUTORS,  ETC.,  OF  SAMUEL  N.  PIKE,  IltfPLEADED 

WITH  LAFAYETTE  HARRISON,  RESPONDENT. 

Signature  —  on  margin  —  disputed  effect  of — liability  thereon  to  be  submitted  on 

proof  to  the  jury. 

P.,  not  mentioned  in  the  body,  signed  his  name  upon  the  margin  of  an  agreement, 
executed  at  its  foot  by  H.  Held,  that  such  signature  did  not  express  what  par- 
ticipation in  the  obligation  P.  meant  to  take,  whether  as  surety,  guarantee  or 
original  contractor,  but  it  might,  perhaps,  with  propriety  be  said,  that  it  was 
evident  from  his  in  no  way  expressing  any  other  obligation  or  intention,  thai 
he  intended  to  bind  himself  as  a  joint  contractor. 

Where  the  complaint  was  originally  in  form  on  guarantee,  but  an  amendment 
allowed  on  the  trial  charged  P.  as  an  original  joint  contractor,  rendering 
it  necessary  for  the  plaintiff  to  establish  by  competent  proof  that  such  was 
his  relation,  because  his  signature  was  by  indorsement  and  not  by  subscription 
to  any  expressed  obligation  of  any  kind,  and  evidence  having  been  given  to 
show  why  P.  signed  the  paper  where  he  did,  and  in  that  way  to  show  what 
he  meant  to  assume,  or  what,  in  other  words,  was  his  relation  to  the  contract, 
held,  error,  to  decide  that  the  action  turned  upon  a  question  of  law  and  to 
dismiss  the  complaint  as  to  P.  on  the  ground  of  misjoinder,  holding  the  con- 
tract to  have  been  made  by  P.  as  guarantor. 

That  the  plaintiff  was  entitled  to  have  the  issue  whether  or  not  P.  was  a  joint 
contractor  with  H.,  created  by  the  amendment  allowed  upon  the  trial,  passed 
upon  by  the  jury. 

APPEAL  from  a  judgment  at  the  Circuit,  dismissing  the  plaintiffs 
complaint. 

The  action  was  commenced  by  the  present  plaintiff  by  her 
guardian ;  but  since  that  time,  she  having  arrived  at  majority,  it 
has  been  continued  in  her  own  name.  Samuel  N.  Pike,  one  of 
the  original  defendants,  died  since  its  commencement,  and  his 
executors  have  been  substituted  in  his  stead. 

Its  object  was  to  enforce  the  liability  of  the  original  defendants, 
Harrison  and  Pike,  on  a  contract  purporting  on  its  face  to  be  made 
between  the  plaintiff  and  the  defendant  Harrison  only,  but  upon 
the  margin  of  which  Pike  affixed  his  name.  The  following  is  a 
copy  thereof: 

"  Copy  contract. 

*  Memorandum  of  an  agreement  made  this  day,  February  18, 


238  HAUCK  v.  CxiAlGHEAD. 

FIRST  DEPARTMENT,  JULY  TEKM,  1876. 

1868,  between  Lafayette  Harrison  and  Miss  Minnie  Hauck,  u 
follows : 

"  Miss  Minnie  Hauck  engages  herself  as  prima  donna  asoleta,  for 
operas  and  concerts,  for  the  term  of  two  months,  from  the  24th  of 
February,  1868. 

"  Miss  Minnie  Hauck  obliges  herself  to  conform  to  all  the  rules 
and  regulations  of  the  theater. 

"  Mr.  Harrison  obliges  himself  to  pay  Miss  Minnie  Hauck  the 
sum  of  $1,400  per  month. 

\  2  Shfc,  \  "  L  F.  HAKKISON. 

^  "  It  is  also  understood  and  agreed  that  Miss  Hauck  shall  sing 
££  at  least  three  (3)  times  in  each  week,  all  extra  performances  to 
^  be  paid  at  the  rate  of  one  hundred  dollars  ($100)  per  perform- 
^  ance. 

S  "  It  is  also  agreed  that  the  salary  shall  be  paid  in  each  and 
OQ  every  week." 

The  complaint  originally  alleged  that  the  said  Pike  "  indorsed  '• 
the  contract  and  became  responsible  for  the  performance  of  the 
same  by  the  said  Harrison. 

The  case  first  came  on  to  be  heard,  October  24, 1874,  before  Justice 
DONOHUE  and  a  jury,  and  upon  an  inspection  of  the  complaint  and 
the  contract,  the  justice  thought  the  complaint  alleged  a  guarantee 
which  was  unsustained  by  the  contract. 

Plaintiff's  counsel  thereupon  moved  for  leave  to  amend  the  com- 
plaint, and  the  justice  allowed  him  to  withdraw  a  juror  with  leave 
to  apply  at  Chambers  for  such  amendment. 

A  motion  was  made  at  Chambers  for  leave  to  amend,  it  was 
denied,  and  an  appeal  was  taken,  and  the  General  Term  held  that 
the  amendment  should  have  been  allowed. 

The  case  then  came  on  for  trial  again  before  Justice  LAWRENOB 
and  a  jury.  The  complaint  was  amended  at  the  trial  by  the  justice, 
go  as  to  allege  a  joint  contract,  but  the  justice  held  that  Pike 
was  a  guarantor,  and  that  being  so  there  was  an  improper  joinder, 
and  he  therefore  dismissed  the  complaint  as  against  the  execnton 
of  Pike. 


HAUCK  v.  CRAIGHEAD.  239 

FIRST  DEPARTMENT,  JULY  TERM,  1876. 
George  V.  N.  Baldwin,  for  the  appellant. 

FransioU,  Tilney  <&  Mosher,  for  the  respondents. 

BRADY,  J.  : 

This  action  against  the  executors  of  S.  N".  Pike  was,  in  form,  on 
his  guarantee  for  the  performance  of  the  agreement  on  the  part  of 
the  defendant  L.  F.  Harrison,  which  the  latter  made  with  the 
plaintiff. 

The  amendment  which  was  allowed  at  the  trial  changed  the  cause 
of  action,  and  charged  the  decedent,  Pike,  as  an  original  contractor 
or  promissor,  and  rendered  it  necessary  for  the  plaintiff  to  establish, 
by  competent  proof,  that  such  was  his  relation  to  her.  It  was  so, 
because  the  signature  of  Pike  was  by  indorsement,  and  not  by  sub- 
scription to  any  expressed  obligation  of  any  kind. 

The  defendant  has  not  appealed  from  that  proceeding,  and  it 
stands  intact  to  be  considered  as  part  of  the  case,  with  all  the  ben- 
efit to  the  plaintiff  to  be  derived  therefrom  because  the  defendant 
succeeded.  The  plaintiff,  after  the  amendment,  proved  by  parol, 
under  objection  and  exception,  what  occurred  prior  to  the  execution 
of  the  agreement  between  her  agent  and  Mr.  Pike,  and  it  appeared 
that  the  plaintiff  refused  to  make  the  contract  with  the  defendant 
Harrison  alone,  and  said,  through  her  agent,  that  if  Mr.  Pike  would 
not  join  in  the  contract  none  would  be  made.  Mr.  Pike  then  said 
he  would  accede  to  her  wishes,  and  signed  his  name  by  writing  it 
upon  the  margin  of  the  agreement.  The  indorsement  or  signing 
by  Mr.  Pike  upon  the  margin  of  the  agreement  does  not  express 
what  participation  in  the  obligation  of  Harrison  he  meant  to  take, 
whether  as  surety,  guarantor  or  original  contractor. 

The  evidence  thus  given  was  not  to  vary  or  contradict  the  agree- 
ment, but  to  show  why  it  was  that  he  signed  the  paper  where  he 
did,  and  in  that  way  to  show  what  he  meant  to  assume  ;  what,  in 
other  words,  was  his  relation  to  the  contract.  If  he  had  subscribed 
the  agreement,  there  is  no  doubt  on  adjudged  cases  (Parkes  v. 
Brinkerhqff,  2  Hill,  663 ;  Baker  v.  Rollins,  2  Denio,  136),  that 
he  would  be  liable  as  originally  and  jointly  bound.  The  name 
being  at  the  foot  of  the  agreement  would  leave  no  doubt  of  it.  In 
the  former  case,  Justice  COWEN  said  :  "  If  it  were  ambiguous,  it  is 


240  HAUCK  v.  CRAIGHEAD. 

FIRST  DEPARTMENT,  JULY  TERM,  1876. 

by  no  means  clear  that  it  might  not  be  made  available  by  extrinsic 
evidence."  In  the  latter  case,  which  was  an  agreement  in  refer- 
ence to  shingles,  Chief  Justice  BRONSON  said :  "  In  the  body  ol 
the  instrument  Clark  alone  is  mentioned  as  the  contracting  party 
but  it  is  evident  from  the  names  subscribed  to  it,  without  resorting 
to  the  extrinsic  evidence,  that  Hurd  also  intended  to  bind  himsell 
as  a  joint  contractor  with  Clark,  and  the  intention  of  the  parties, 
when  it  can  be  gathered  from  the  writing  and  is  not  contrary  to 
law,  must  be  carried  into  effect." 

It  might,  perhaps  with  propriety,  be  said,  that  it  is  evident  from 
the  paper  itself  that  the  decedent,  Pike,  intended  to  bind  himself  as 
a  joint  contractor  because  he  signed  the  agreement,  and  in  no  way 
expressed  any  other  obligation  or  intention. 

The  cases  cited,  it  must  be  conceded,  are  not  entirely  like  this, 
but  the  difference  consists  only  in  the  position  of  the  signature,  and 
this  seems  too  unimportant  to  change  the  principles  announced. 
It  may  be  said  that,  strictly,  the  only  parallel  for  this  case  is,  where 
a  person  writes  his  name  on  the  back  of  a  note  not  negotiable,  the 
legal  consequence  of  which  is  that  he  may  be  held  as  maker  or 
guarantor.  (Richards  v.  Waring,  1  Keyes,  576  ;  Moore  v.  Cross, 
19  K  Y.,  227.) 

Here,  unless  some  interpretation  is  given  to  the  signature  of  Mr. 
Pike,  he  assumed  no  liability,  because  there  was,  as  already  said, 
nothing  written  over  it. 

If  the  plaintiff  had  the  power  to  overwrite  the  name  of  Pike 
with  a  contract  implied  by  law,  or  recover  against  him  as  an  original 
contractor  or  guarantor,  then  the  amendment  was  unobjectionable, 
because  it  only  expressed  his  obligation,  and  parol  evidence  to  sus- 
tain it,  could  not  affect  the  interests  of  his  estate,  while  it  sustained 
the  legal  result  predicated  of  his  signature  in  the  place  mentioned. 
There  is  no  distinction  between  a  note  and  an  agreement  recognized. 
In  the  cases  in  2  Hill  and  2  Denio  (supra\  the  rule  was  applied  to 
both.  They  rest  on  the  same  principles,  and  should  be  governed 
by  the  same  rule. 

It  is  quite  clear  that  the  decedent  meant  to  be  bound  in  relation 
to  Harrison's  contract,  and  if  the  plaintiff  could  regard  him  as 
an  original  contractor  or  guarantor,  the  view  of  the  learned  justice 
at  the  trial  was  erroneous,  and  a  new  trial  should  be  granted. 


STEWART  v.  ALDRICH.  241 

PIBST  DEPARTMENT,  JULY  TERM,  1876. 

The  decision  heretofore  rendered  in  this  case  on  the  appeal  in 
reference  to  a  contemplated  amendment  does  not  affect  the  question 
under  discussion. 

It  was  only  intended  by  that  decision  to  pass  upon  the  propriety 
of  the  order  appealed  from.  It  was  not  designed  to  limit  the  plain- 
tiff's cause  of  action  or  remedy  to  what  was  then  revealed. 

The  plaintiff  was  entitled  to  have  the  issue  passed  upon  created 
by  the  amendment  allowed  upon  the  trial,  namely,  whether  or  not 
the  defendants'  testator  was  a  joint  contractor  with  Harrison,  and 
there  must  therefore  be  a  new  trial,  costs  to  abide  event. 

DAVIS,  P.  J.,  and  DANIELS,  J.,  concurred. 

Judgment  reversed  and  new  trial  ordered,  with  costs  to  abide 
event. 


DAVID  STEWART,  PLAINTIFF,  v.  HERMAN  D.  ALDRICH, 

DEFENDANT.* 

Party  watt —  covenant  by  grantee  to  assume  agreement  as  to — similar  in  principle  to 
assumption  of  mortgage. 

Where  a  deed  was  executed  and  delivered,  conveying  premises  subject  to  a  party 
wall  agreement,  made  between  the  grantor  and  the  owner  of  adjoining  premises. 

Held,  that  the  burden  was,  by  express  covenant,  transferred  to  the  grantee,  and  he 
assumed  it,  and  the  covenant  to  pay  for  the  party  wall,  when  used,  became 
united  with,  and  formed  part  of  the  consideration  for  which  the  land  was 
parted  with.  That  there  was  no  difference  between  a  covenant  to  assume  an 
obligation  of  a  party  wall  agreement,  and  one  assuming  the  payment  of  a 
mortgage. 

SUBMISSION  of  case  under  section  372  of  the  Code. 

The  plaintiff,  Stewart,  owned  lot  No.  604,  and  one  John  N. 
Hayward  owned  lot  No.  602,  on  Broadway,  and  the  lots  adjoined. 
In  June,  1853,  Hayward  and  Stewart,  when  Stewart  was  about  to 
rebuild,  made  a  contract  that  the  new  wall  should  be  a  party  wall 
between  said  lots.  Stewart  was  to  build  the  new  wall  on  the 
dividing  line,  one-half  to  be  on  the  land  of  each  party  ;  the  founda- 
tion to  be  at  least  twenty-tour  inches  thick  at  base,  etc. 

Hayward,  "  his  heirs  and  assigns,"  were  to  be  **  at  liberty  at  any 

*  See  McDonnell  v.  Quher,  ante,  p.  155 
HUN— VOL.  VIII         31 


242  STEWART  v.  ALDR1CH. 

FIRST  DEPARTMENT,  JULT  TERM,  1876. 

time  to  use  said  wall,  or  a  part  thereof,  upon  paying  to  the  party  of 
the  first  part  (Stewart),  a  moiety  or  half  part  of  the  then  value  of 
said  wall,  or  of  the  part  so  used,  and  uot  otherwise."  Stewart  built 
the  wall  at  his  own  expense,  according  to  the  contract,  in  1853. 

The  contract  was  duly  acknowledged  by  both,  and  recorded 
September  20,  1853,  in  book  648  of  conveyances,  page  349. 

In  1857,  Hayward  sold  to  the  defendant,  Aldrich,  with  full 
covenants  of  warranty  and  in  fee,  and  the  deed  was  delivered  and 
recorded.  The  deed  contained  this  clause,  "  subject,  nevertheless, 
to  a  party  wall  agreement  made  between  the  said  John  N.  Hay- 
ward  and  the  owners  of  the  building  on  the  lot  No.  604  (six  hundred 
and  four)  Broadway,  next  adjoining  to  the  north  of  the  premises 
above  described,  which  party  wall  agreement,  the  party  of  the 
second  part  hereto,  hereby  agrees  to  assume." 

The  defendant,  as  owner  under  said  deed,  took  possession  of  and 
used  a  portion  of  said  party  wall,  of  the  agreed  value  of  $1,955,  of 
which  one-half,  viz.,  $977.50,  had  been  demanded  of  the  defendant 
by  the  plaintiff,  as  due  under  said  contract  and  deed  ;  and,  though 
admitting  such  use,  and  that  he  still  owned  such  lot,  the  defendant 
refused  to  pay,  and  insisted  he  was  not  liable. 

D.  B.  JEaton,  for  the  plaintiff. 
Edwin  S.  J$abcock,  for  the  defendant. 

BBADT,  J. : 

The  deed  by  which  Hayward  conveyed  the  premises  to  the  defend- 
ant, subjected  the  estate  created  to  the  party  wall  agreement  made 
between  him  and  the  plaintiff,  and  the  defendant  agreed  to  assume 
it,  that  is  to  say,  he  agreed  when  he  used  the  party  wall  to  pay  for 
it,  just  as  his  grantor  had  agreed  to  do  by  the  agreement  mentioned. 
Whatever  may  have  been  the  result  of  "  wandering  into  the  region 
of  learned  speculation"  to  which  the  counsel  for  the  defendant  refers 
in  his  points,  the  legal  proposition  stated  is  one  which  must  at  once 
strike  the  untutored  and  should  find  a  warm  embrace  in  the  learned 
mind.  The  defendant's  grantor  acknowledged  and  respected  his 
own  obligation  and  when  he  conveyed  the  property,  did  so  with 
that  obligation  as  a  burden  upon  it.  The  duty  thus  imposed  upon 
the  defendant  was  a  part  of  the  consideration  for  the  purchase,  just 


STEWART  v.  ALDRICH.  243 

FIKST  DEPARTMENT,  JULY  TERM,  1876. 

as  much  so  as  the  assumption  of  a  mortgage  executed  by  the  grantor 
would  have  been.  The  grantor  was  equally  bound  to  discharge  it. 
He  could  not  avoid  the  covenant.  If  he  had  used  the  wall  he  would 
be  required  to  pay  the  sum  agreed  upon.  (Brown  v.  Punts,  11 
N.  Y.  Legal  Obs.,  24;  Sherred  v.  Cisco,  4.  Sand.  S.  C.,  480.)  The 
case  of  Cole  v.  Hughes  (54  N".  Y.,  444)  is  not  at  all  in  conflict  with 
this  view. 

There  was  nothing  more  than  constructive  notice  of  the  party 
wall  agreement  charged  against  Hughes,  no  assumption  of  any 
agreement  in  relation  to  it,  or  any  express  or  implied  obligation  to 
be  bound  by  it. 

The  court  said  in  that  case,  however,  "  there  is  a  wide  difference 
between  the  transfer  of  the  burden  of  a  covenant  running  with  the 
land  and  of  the  benefit  of  the  covenant,  or,  in  other  words,  of  the 
liability  to  fulfill  the  covenant  and  of  the  right  to  exact  its  fulfill- 
ment. The  benefit  will  pass  with  the  land  to  which  it  is  incident, 
but  the  burden  or  liability  will  be  confined  to  the  original  cove- 
nantor, unless  the  relation  of  privity  of  estate  or  tenure  exists,  or 
is  created,  between  the  covenantor  and  covenantee  at  the  time  when 
the  covenant  is  made." 

When  the  deed  was  executed  the  burden  was  by  express  cove- 
nant transferred  to  the  defendant,  and  he  assumed  it.  The  covenant 
to  pay  for  the  party  wall  when  used,  became  united  with  and  formed 
a  part  of  the  consideration  for  which  the  land  was  parted  with 
between  the  defendant  and  his  grantor,  and  this,  as  already  sug- 
gested, makes  the  defendant  liable.  Hurd  v.  Curtis  (19  Pick., 
459) ;  Sherred  v.  Cisco  (supra)  do  not  reject,  but  recognize  this 
principle,  and  it  would  be  a  very  extraordinary  departure  from 
familiar  and  established  rules,  if  they  did  not.  There  is  no  differ- 
ence between  a  covenant  to  assume  the  obligations  of  the  party 
wall  agreement  and  one  assuming  the  payment  of  a  mortgage.  The 
discussion  of  a  question  so  simple  in  its  legal  and  equitable  aspects 
seems  to  be  unnecessary. 

The  plaintiff  should  have  judgment  for  the  amount  agreed  upon 

DAVIS,  P.  J.,  and  DANIELS,  J.,  concurred. 

Judgment  ordered  for  plaintiff  for  amount  agreed  upon. 


MEMORANDA 

OF 

OASES    NOT    REPORTED    IN    FULL 


NORMAN  HUBBARD  AND  GEORGE  WHITTAKER,  PLAIN- 
TIFFS, v.  JAMES  O'BRIEN,  SHERIFF  OF  THE  Omr  AND  COUNTY 
OF  NEW  YORK,  DEFENDANT. 

Acceptance  —  what  sufficient  to  vest  title — Goods  manufactured  to  order — payment 
«f  price  after  seeing  them,  and  direction  to  ship  —  transfers  title. 

EXCEPTIONS  ordered  to  be  heard,  in  the  first  instance,  at  General 
Term,  on  a  judgment  directed  for  the  defendant  at  the  Circuit. 

The  suit  was  brought  by  the  plaintiffs  to  recover  possession  of  an 
iron  rod  seized  by  the  defendant  under  an  attachment  against  one 
George  E.  Reynolds,  of  Bristol,  Pennsylvania.  The  plaintiffs  are 
machinists ;  and,  having  to  build  a  large  engine,  entered  into  an 
agreement  with  Reynolds,  whereby  he  was  to  manufacture  for  them 
certain  heavy  parts  of  the  engine,  including  the  rod  seized.  Some 
of  the  articles  were  delivered ;  and  on  the  16th  day  of  December, 
1868,  before  the  delivery  of  the  rod  seized,  Reynolds  came  to  the 
plaintiffs,  stated  that  the  rod  was  finished,  and  was  at  the  shop  of  Neatie 
&  Levy,  in  Philadelphia ;  that  said  firm  had  done  the  finishing  of 
the  rod,  and  would  not  deliver  it  till  their  claim  upon  it  for  their 
work  was  paid,  and  that  he  wanted  the  money.  To  this  the  plain- 
tiffs finally  assented,  giving  Reynolds  their  note  for  the  whole  price 
of  the  rod,  which  was  paid  by  them  February  27,  1869,  and  Rey- 
nolds at  the  same  time  giving  the  plaintiffs  the  bill  for  the  rod,  and 
giving  tnem  a  receipt  for  the  same  in  their  receipt  book.  The  rod 
still  not  coming  forward,  the  plaintiffs  went  to  Neafie  &  Levy,  at 
Philadelphia,  and  saw  the  rod  there  finished  and  ready  for  delivery. 
But  Neafie  &Levy  refused  to  deliver  the  rod  to  plaintiffs,  claiming 
that  Reynolds  had  not  paid  their  lien  upon  it.  The  plaintiffs,  to 
obtain  possession  of  the  rod,  paid  Neafie  &  Levy  their  claim,  and 


HUBBARD  v.  O'BRIEN.  245 


FIRST  DEPARTMENT,  JULY  TERM,  1876. 


the  latter,  in  accordance  with  plaintiffs'  instruction,  shipped  the 
rod  to  plaintiffs,  at  New  York,  giving  plaintiffs  the  bill  of  lading 
for  the  same.  On  the  arrival  of  the  rod  at  pier  No.  2,  New  York, 
the  same  was  seized  by  the  sheriff  under  an  attachment  against 
Reynolds.  The  court  directed  a  verdict  for  the  defendant,  on  the 
ground  that  the  title  to  the  rod  had  never  passed  to  the  plaintiflfe 
The  plaintiffs  requested  the  court  to  direct  a  verdict  for  the  plain- 
tiffs, which  the  court  refused  ;  and  also  asked  to  go  to  the  jury  on 
the  question,  whether  the  transactions  of  December  sixteenth  were 
a  sale,  which  was  also  refused.  To  the  court's  direction  and  its 
refusals  plaintiffs  excepted. 

The  court  at  General  Term  say  :  "  It  appears  from  this  statement 
that  the  rod  was  seen  by  the  plaintiffs  in  Philadelphia,  and  by  their 
direction  sent  to  them  after  the  payment  by  them  of  the  lien  of 
Neafie  &  Levy.  This  was  the  acceptance  of  the  rod,  and  an  exer- 
cise of  ownership  over  it.  They  had  already  given  their  note  for 
the  price  of  it  to  Reynolds  under  his  promise  to  pay  Neafie  &  Levy 
and  to  send  it  on  to  them.  Whatever  right  they  might  have  had 
to  reject  it  was  waived  when  they  paid  the  lien  of  these  workmen, 
and  directed  it  to  be  shipped  to  them.  "When  an  article  is  manu- 
factured, it  is  true  that  the  title  does  not  vest  in  the  person  for 
whom  it  is  made  until  it  is  finished  and  delivered,  or  ready  for 
delivery,  and  approved  by  him.  (Andrews  v.  Durant,  11  N.  Y., 
35,  per  DENIO,  J. ;  William?  v.  Jackman,  16  Gray  [82  Mass.],  517.) 

If  the  title  to  the  article  ve»ced  absolutely  in  the  person  ordering 
it,  it  would  necessarily  follow  that  he  must  accept  it,  and  he  would 
thus  be  deprived  of  the  right  to  say  that  it  was  not  completed,  or 
not  made  in  accordance  with  the  contract  relating  to  it,  and  also  of 
the  right  of  refusing,  therefore,  to  accept  it.  If,  however,  the  arti- 
cle being  finished,  he  accept  it  and  pay  for  it,  and  direct  its  trans- 
portation to  him,  there  can  be  no  doubt  that  the  title  passes  at  once. 
(Cases  supra.)  The  doctrine  of  acceptance  and  approval  is  chiefly 
necessary  for  the  protection  of  persons  ordering  the  manufactured 
article. 

The  presumption  must  be  that  the  manufacturer  is  content  to 
deliver,  and  when  the  minds  meet  by  completion  and  acceptance  or 
approval,  and  the  price  is  paid  in  any  manner  agreed  upon,  the  title 
passes  and  the  property  is  at  the  risk  of  the  vendee,  unless  there  be 


246  HUBBARD  v.  O'BRIEN. 

FIBST  DEPARTMENT,  JULY  TKKM,  1876. 

something  special  intervening  to  prevent  the  application  of  the  rule 
as  to  risk.  The  risk  follows  the  title.  It  is  not  thought  requisite 
to  enter  into  any  elaborate  discussion  of  this  subject.  The  cases 
8Uj.rra,  and  those  hereafter  cited,  make  the  conclusion  on  which  this 
opinion  is  based  unassailable.  (Terry  v.  Wheeler,  25  N.  Y.,  522; 
RusseU  v.  Carrington,  42  id.,  119;  Cross  v.  O'Donnett,  44  id., 
661 ;  Brewer  v.  Salisbury,  9  Barb.,  512.)  The  position  of  the 
defendant  rests  on  the  assumption  that  the  agreement  was  not  ended 
or  completed,  or  the  property  vested  either  because  the  rod  was  not 
finished  or  accepted  or  delivered  ;  and  if  the  facts  warranted  this 
attitude,  it  might  be  troublesome,  if  not  impossible,  to  disturb  the 
judgment.  In  this  he  is  in  error. 

The  rod  was  finished.  It  was  accepted,  paid  for,  and  delivered. 
The  delivery  to  the  carrier,  in  accordance  with  the  plaintiffs'  instruc- 
tions, was  a  delivery  to  them.  They  had  the  right  to  direct  the 
transportation  of  the  rod,  because  they  had  paid  for  it,  and  by  dis- 
charging the  lien  of  Neafie  &  Levy  they  had  removed  the  only 
obstacle  to  their  complete  possession  and  ownership.  This  case 
differs,  therefore,  widely  from  that  class  of  cases  which  hold  that 
goods  ordered  to  be  made,  do  not  become  the  property  of  the  per- 
son directing  their  manufacture  until  they  are  completed  and 
accepted  and  delivered.  For  these  reasons  there  should  be  a  new 
trial. 

Ordered  accordingly,  with  costs  to  abide  event." 

E.  M.  Cullen,  for  the  plaintiffs.  A.  J.  Vanderpoel,  for  the 
defendant. 

Opinion  by  BBADY,  J. ;  DAVIS,  P.  J.,  and  DANIELS,  J.,  concurred. 
New  trial  ordered,  costs  to  abide  event. 


N.  Y.  BALANCE  DOCK  CO.  v.  MAYOR.  247 

FIRST  DEPARTMENT,  JULY  TERM,  1876. 


THE  NEW  YORK  BALANCE  DOCK  COMPANY,  RESPOND- 
ENT, v.  THE  MAYOR,  ETC.,  OF  NEW  YORK,  AND  THE 
DEPARTMENT  OF  PUBLIC  CHARITIES  AND  COR- 
RECTION, APPELLANTS. 

Department  of  public  charities  and  correction,  New  York — can  neither  sue  nor  be  sued. 

APPEAL  from  a  judgment  entered  at  Special  Term  in  favor  of 
the  plaintiff  against  the  defendants. 

The  plaintiff  seeks  to  recover  in  this  action  a  balance  due  for 
work  done  upon  the  school-ship  Mercury.  The  bill  for  the  whole 
service  has  never  been  disputed.  It  was  duly  certified  to  the 
comptroller  for  payment  by  the  commissioners  of  charities  and 
correction,  by  whom  the  plaintiff  was  employed,  and  a  bill  or 
requisition  for  its  amount  was  presented  to  him  on  the  24th  of 
May,  1873,  at  which  time  the  amount  to  the  credit  of  the  depart- 
ment of  the  commissioners  named  was  more  than  sufficient  to  pay  it. 

On  the  18th  of  March,  1875,  there  was  an  unexpended  balance 
of  the  appropriations  for  1873,  amounting  to  the  sum  of  $1,392.47, 
which  was  paid  on  account  of  the  plaintiff's  claim,  which  was  thus 
acknowledged  to  be  correct. 

The  court  at  General  Term  say :  "  With  this  array  of  fact,  it 
seems  strange  that  the  interposition  of  any  defense  should  have 
been  considered  necessary.  The  proposition  that  the  appropria- 
tion was  exhausted  when  this  action  was  commenced,  is  hardly 
worthy  of  serious  consideration  in  face  of  the  fact,  that  when  the 
plaintiff's  claim,  justly  due,  was  presented  for  payment,  and  when 
it  should  have  been  paid,  as  this  action  demonstrates,  there  was  an 
excess  of  funds  belonging  to  the  appropriation  over  and  above  its 
amount. 

"  It  then  became  the  duty  of  the  comptroller,  at  once,  to  set  aside 
the  amount  necessary  to  meet  it,  if,  for  any  just  reason,  its  payment 
was  to  be  deferred,  for  the  requisition  mentioned  was  an  equitable 
assignment  pro  tanto  of  the  funds  of  the  department  of  which  he 
was  the  depositary.  (Hall  v.  City  of  Buffalo,  1  Keyes,  193 ;  Parker 
v.  City  of  Syracuse,  31  N.  Y.,  379.)  This  defense  fails  utterly. 


£48  N.  T.  BALANCE  DOCK  CO.  v.  MAYOR. 

FIRST  DEPARTMENT,  JULY  TERM,  1876. 

There  is,  however,  substance  in  the  proposition  that  the  commis- 
sioners of  charities  and  correction  should  not  have  been  joined  in 
this  action,  and  that  judgment  should  have  been  in  their  favor. 

"  They  constitute  only  a  branch  of  the  city  government,  a  part  of 
the  municipality  appointed  by  its  officers,  with  some  independent 
powers,  but  nevertheless  in  the  main,  subservient  to  and  under  the 
supervision  and  control  of  the  general  government.  They  have 
no  corporate  rights.  They  can  neither  sue  nor  be  sued.  They 
form  a  department  merely  as  suggested,  for  the  expense  of  which 
the  city  government  provides,  but  they  make  no  payments  other 
than  by  requisition  or  drafts  upon  the  sums  appropriated  to  their 
use,  and  held  for  them  by  the  defendants,  The  Mayor,  etc.,  which 
are  to  be  honored  by  the  comptroller  in  the  manner  prescribed  by 
law.  (Chap.  510,  Laws  of  1860 ;  chap.  335  [Charter],  Laws  of  1873, 
§§  25,  26,  27,  28,  29,  90,  91,  112.) 

"  The  independent  powers  exercised  are  conferred  to  enable  the 
municipality  more  perfectly  to  discharge  its  varied  and  important 
duties,  and  to  that  end  the  commissioners  are  required  to  make 
proper  estimates  of  the  money  needed,  and  in  the  several  matters 
pertaining  to  their  domain  to  do  what  is  authorized,  drawing  upon 
the  fiscal  officer  of  the  corporation  to  the  extent  only  in  the  aggre- 
gate of  the  sums  appropriated  for  their  use,  being  thus  restricted  in 
expenditure  to  prevent  useless  or  extravagant  outlays. 

"  When,  therefore,  the  requisition  was  made  for  the  plaintiff,  or 
the  bill  certified  to  be  correct  by  the  commissioners  in  the  usual 
manner,  they  did  all  that  they  could  be  called  upon  to  do  for  the 
plaintiff,  and  no  action  or  proceeding  was  necessary  or  proper  against 
them. 

"  The  duty  was  then  cast  upon  the  finance  department  to  examine 
and  pay  the  bill,  or  to  resist  its  payment,  if  there  existed  any  good 
reason  why  it  should  not  be  paid.  If  no  such  reason  existed,  it 
should  have  been  paid. 

"  The  result  of  these  views  is,  however,  that  the  judgment  must 
be  reversed  as  to  the  commissioners,  and  affirmed  as  to  the 
defendants  The  Mayor,  etc." 

Wm.  C.  Whitney,  for  the  appellants.    R.  W.  De  Forrest,  for  the 
respondent. 


MERCHANTS'  BANK  v.  UNION  R.  R.  &  TRANS.  CO.  249 
FIRST  DEPARTMENT,  JULY  TERM,  1876. 

Opinion  by  BBADT,  J. ;  DAVIS,  P.  J.,  and  DANIELS,  J.,  concurred 
in  result. 

Judgment  reversed  as  to  commissioners  and  affirmed  as  to  The 
Mayor,  etc. 


THE  MERCHANTS'  BANK  OF  CANADA,  RESPONDENT,  v. 
THE  UNION  RAILROAD  AND  TRANSPORTATION 
COMPANY,  IMPLEADED  WITH  THE  PACIFIC  MAIL 
STEAMSHIP  COMPANY,  APPELLANT. 

Several  bttts  of  lading  —  Delivery  of  goods  —  the  holder  of  which  Mil  entitled  to. 

APPEAL  by  the  defendant  from  a  judgment  entered  upon  a 
verdict  in  favor  of  the  plaintiff,  by  direction  of  the  court. 

In  February,  1873,  the  firm  of  Ritchie,  Gregg,  Gillespie  &  Co., 
merchants,  of  Montreal,  applied  by  letter  to  the  plaintiff,  a  bank- 
ing institution  of  the  same  city,  for  a  credit  of  £10,000  sterling, 
in  favor  of  their  agents,  Charles  Thorel  &  Co.,  at  Yokohama. 
Such  credit  was  to  be  availed  of  by  the  latter  by  their  drafts  upon 
the  London  agents  of  the  plaintiff,  the  London  Joint-stock  Bank, 
the  plaintiff  having  arranged  that  the  latter  should  accept  such 
drafts  on  the  hypothecation  by  the  drawers  (Thorel  &  Co.)  of  the 
teas  purchased  by  them  in  Yokohama  for  Ritchie,  Greggi  Gillespie 
&  Co. 

Six  hundred  and  seventy-six  packages  of  tea  were  shipped  to 
New  York  by  Thorel  &  Co.,  deliverable  to  order  of  shipper,  as 
per  bill  of  lading.  The  plaintiff's  manager  testified  that  the  plain- 
tiff procured  and  made  an  advance  upon  the  676  packages  of  tea 
mentioned  in  the  bill  of  lading  ;  that  the  plaintiff  received  the  bill 
of  lading,  invoice  and  consular  certificate  from  the  London  Joint- 
stock  Bank,  in  order  that  the  plaintiff  might  collect  or  realize  the 
smount  of  the  invoice,  and  therewith  retire  or  pay  the  draft  of  the 
shipper,  for  the  payment  of  which  the  plaintiff  held  the  bill  of 
lading.  He  also  testified  that  the  plaintiff  paid  the  amount  of  the 
draft  to  the  London  Joint-stock  Bank,  retaining  the  bill  as  its 
security  for  the  amount.  The  bill  of  lading,  however,  contained 
HUN— VOL.  VIII.  32 


250  MERCHANTS'  BANK  v.  UNION  R.  R.  &  TRANS.  CO. 
FIRST  DEPARTMENT,  JULY  TERM,  1876. 

a  statement  that  the  agent  of  the  steamer  had  signed  five  bills  oi 
lading  all  of  the  same  tenor  and  date,  one  whereof  being  accom- 
plished, the  others  were  to  stand  void.  Shortly  after  their  arrival 
in  New  York  by  the  det'endant's  conveyance,  the  defendant  deliv- 
ered the  teas  to  Thomas  Rigney  &  Co.,  who  had  one  of  the  bills 
of  lading,  upon  receiving  the  written  guarantee  of  that  firm, 
indorsed  on  their  bill  of  lading,  that  they  would  deliver  to  defend- 
ant "  the  regular  Mil  of  lading,  indorsed  for  the  within  teas,  ao 
soon  as  the  same  reached  us." 

The  court  at  General  Term  say  :  "  It  is  assumed  that  the  title 
to  the  teas  was  in  Charles  Thorel  &  Co.,  and  that  the  mere  posses- 
sion of  the  unindorsed  bill  of  lading  by  the  plaintiff  was  not 
sufficient  evidence  of  the  transfer.  The  point  thus  taken  is 
ingeniously  put  and  argued,  but  the  authorities  do  not  sanction 
it.  The  rule  is  settled  in  this  State,  that  the  transfer  of  a  bill  of 
lading  without  indorsement  is  a  symbolical  delivery  of  the  goods; 
that  the  property  in  it  may  be  conveyed  by  such  delivery,  and  be 
good  against  all  the  world  except  an  innocent  indorser  for  a 
valuable  consideration.  (Nathan  v.  G-iles,  5  Taunt.,  558 ;  Bank 
of  Rochester  v.  Jones,  4  N.  Y.,  497 ;  Cayuga  Co.  Nat.  Bank  v. 
Daniels,  47  id.,  631  ;  Marine  Bank  v.  Wright,  48  id.,  1 ;  First 
Nat.  Bank  of  Cincinnati  v.  Kelly,  57  id.,  34 ;  Allen  v.  Wil- 
liams, 12  Pick.,  302.)  It  is  tme  that  the  delivery  of  the 
bill  must  be  with  intent  to  pass  the  title,  and  that  there 
must  be  some  evidence  to  sustain  that  element.  The  arrange- 
ment macle  with  the  plaintiff  in  reference  to  the  advances, 
provided  for  the  delivery  of  the  bill  of  lading  as  a  security 
therefor,  and  their  possession  of  it,  after  the  advances,  and  of  the 
invoice  and  consular  certificate,  which  they  also  had,  made  it 
presumptive  evidence  that  it  was  delivered  for  the  purpose  con- 
templated. There  is  no  evidence  to  the  contrary.  *  *  * 

"  The  defendants  were  acting,  therefore,  with  full  knowledge  and 
under  guarantee.  They  cannot  cut  off  the  plaintiffs,  who  are  bona 
fide  holders  for  value,  without  notice.  The  defendants'  counsel 
referred  to  the  case  of  Fearn  v.  Bowers  (cited  in  Lickbarrow  v. 
Mason,  1  Sm.  L.  C.  [7  Am.  ed.],  1162),  and  to  The  Tigress  (Brown 
<fe  Lush,  43),  to  sustain  the  proposition  that,  where  there  are 
several  bills  of  lading,  although  the  title  to  the  property  described 


RUHE  v.  LAW.  251 


FIRST  DEPABTMBNT,  JULY  TERM,  1876. 


goes  to  the  first  person  to  whom  oue  of  them  is  transferred  for 
value,  the  master  is  justified  in  delivering  the  goods  to  the  holder 
of  the  first  bill  presented. 

"  The  decision  in  Fearn  v.  Bowers,  it  will  be  found,  is  predicated 
of  a  usage  of  trade,  which  sanctioned  the  delivery  of  the  goods  to 
any  one  of  several  holders  that  the  captain  thought  proper  to 
select.  He  was  not  bound,  it  was  said,  to  look  into  the  invoice  01 
to  consider  the  merits  of  different  claimants.  But  that  case  stands 
alone,  and  its  doctrine,  resting  upon  usage,  is  clearly  an  exception 
to  the  general  rule  governing  the  relations  of  the  oona  fide  holder 
of  the  bill  to  the  carrier.  The  question  was  not  involved  in  the 
sase  of  The  Tigress,  but,  so  far  as  it  is  affirmatory  of  the  case  of 
Fearn  v.  Sowers,  it  rests  upon  the  usage  mentioned,  to  which 
allusion  is  made  in  the  case.  Here  there  was  no  proof  of  usage, 
and  no  offer  to  prove  it. 

"  It  is  evident,  indeed,  that  the  defendants  suspected  the  right  of 
Thomas  Rigney  &  Co.  to  receive  the  property,  because  they 
delivered  it  only  upon  a  guarantee  that  that  firm  would  give  the 
regular  bill  of  lading,  by  which  was  meant  the  bill  only  which  was 
entitled  to  be  honored.  They  took  the  risk  of  delivery,  and  must 
take  the  consequences.  The  cases  are  not  parallel,  therefore." 

Ashlel  Green,  for  the  appellant.  A.  A.  Redfield,  for  the 
respondent. 

Opinion  by  BBADY,  J. ;  DAVIS,  P.  J.,  and  DANIELS,  J.,  concurred 
Judgment  affirmed,  with  costs. 


FRANCIS  H.  RUHE,  APPELLANT,  v.  NATHANIEL  B.  LAW, 
INDIVIDUALLY  AND  AS  EXECUTOR,  ETC.,  RESPONDENT. 

Resale  of  property  —  "  difference  and  costs  and  expenses  on  the  resale  " — subsequent 
taxes  included  within  —  Boundaries  control  courses. 

APPEAL  from  a  judgment  rendered  at  Special  Term  in  favor  of 
the  defendant,  for  a  counter-claim. 

The  plaintiff  purchased  certain  real  estate  at  a  sale  ordered  by 
the  surrogate  of  Kings  county,  and  having  refused  to  complete 


252  RUHE  v.  LAW. 


FIRST  DEPARTMENT,  JULY  TERM,  1876. 


brought  this  action  to  recover  the  ten  per  cent  paid  at  the  time  of 
the  purchase.  The  objections  to  the  title  having  been  overruled, 
and  the  terms  of  sale  having  provided  for  a  resale  and  for  the 
plaintiff's  liability  in  case  of  a  deficiency,  and  the  'second  sale  not 
having  realized  as  much  as  the  first,  the  plaintiff  was  charged  with 
the  deficiency  and  the  taxes,  which  had  ad  interim  been  imposed 
npon  the  property. 

The  court  at  General  Term  say:  "The  chief  objection  was 
the  use  of  the  word  easterly  in  the  description  of  the  prop- 
erty, but  the  monuments  or  fixed  boundary  (Fulton  street),  men- 
tioned, showed  plainly  that  the  word  "  westerly "  was  intended 
and  was  in  accord  with  the  diagram  which  formed  part  of  the 
description.  Known  and  fixed  boundaries  control  courses  and 
distances.  (Gerard  on  Titles,  175,  and  cases  cited.)  *  *  *  He 
complains  that  the  sum  of  $526.25,  paid  for  taxes,  imposed  subse- 
quent to  his  refusal  to  complete  and  before  the  second  sale,  are  not 
within  the  letter  or  spirit  of  the  contract,  which  threw  upon  him 
the  'difference  and  costs  and  expenses  on  the  resale,'  but  in  this 
he  is  mistaken.  The  resale  was  not  delayed  and  the  additional 
taxes  were  legitimately  a  part  of  the  difference  in  the  sum  realized. 
The  necessity  of  their  payment  was  occasioned  by  his  refusal  to 
complete  the  sale.  If  he  had  taken  the  property  the  defendant 
would  not  have  been  obliged  to  pay  them  under  any  circumstances. 
*  *  *  We  discover  no  reason  why  the  judgment  should  be 
disturbed  and  it  must  be  affirmed,  with  costs." 

C.  &  N.  D.  Lawton,  for  the  appellant.  Richwd  H.  Uuntley, 
for  the  respondent. 

Opinion  by  BRADY,  J. ;  DAVIB,  P.  J.,  and  DANIELS,  J.,  concurred. 
Judgment  affirmed,  with  costs. 


HERRMAN  v.  GILBERT.  253 

FIRST  DEPARTMENT,  JTOY  TERM,  1876. 


HENRY  HERRMAN  AND  ISAAC  HERRMAN,  RESPONDENTS, 
v.  WILLIAM  R.  GILBERT  AND  STEPHEN  J.  WEAVER, 
IMPLEADED  WITH  JOHN  T.  STEWART,  APPELLANTS. 

Attachment  —  Seizure  —  what  acts  of  plaintiff,  a  ratification  of. 

APPEAL  from  a  judgment  entered  on  the  verdict  of  a  jury  in 
favor  of  the  plaintiffs,  and  from  an  order  denying  a  new  trial. 

The  defendants,  appellants,  merchants  doing  business  in  the  city 
of  New  York,  on  the  18th  day  of  September,  1873,  sued  out  a 
writ  of  attachment  against  the  property  of  one  Henry  Curran,  said 
writ  being  directed  to  one  John  T.  Stewart,  a  city  marshal  of  the 
city  of  New  York ;  the  writ  was  placed  in  the  hands  of  said  Stew- 
art by  the  attorney  for  the  attaching  creditors,  with  instructions  to 
attach  some  goods  that  came  from  Lockport,  down  in  Dey  street. 

Stewart,  accompanied  by  one  Walker,  a  salesman  of  Gilbert  & 
Weaver,  proceeded  to  No.  79  Dey  street,  and  Walker,  pointing  to 
a  lot  of  goods  in  the  possession  of  one  Lewis  Greenbaurn,  said  : 
"  These  are  the  goods,"  whereupon  the  marshal  made  a  levy,  by 
virtue  of  said  writ,  upon  the  goods  of  the  plaintiffs  herein.  Mr. 
Greenbaum  informed  said  marshal  that  said  goods  did  not  belong 
to  Henry  Curran,  but  to  H.  Herrman  &  Son  ;  whereupon  Walker 
"  started  for  Gilbert  &  Weaver  to  state  to  them  how  the  trouble 
was  about  the  goods,  and  then  he  returned  and  told  Stewart  to  take 
the  goods  at  all  hazards,"  "  by  the  authority  of  Gilbert  &  Weaver." 
The  goods  of  the  plaintiff  were  then  seized  and  removed  to  an 
auction  store,  notwithstanding  the  protests  of  Greenbaum  and  his 
attorney.  The  plaintiffs  then  brought  suit  for  the  recovery  of  the 
value  of  the  goods  against  the  defendants  Gilbert  &  Weaver,  and 
John  T.  Stewart,  the  marshal.  The  counsel  for  Gilbert  &  Weaver 
asked  the  court  to  direct  a  verdict  in  their  favor,  on  the  ground 
that  there  was  no  evidence  connecting  them  with  the  seizure,  or 
any  authority  or  ratification  on  their  part.  The  motion  was  denied, 
and  the  court  submitted  the  question  of  authority  and  ratification 
to  the  jury,  to  which  they  excepted. 

The  court  at  General  Term  say  :  "  When  a  seizure  is  made 
of  property  and  it  is  claimed  by  a  third  party,  and  he  is  com- 


254  HERRMAN  v.  GILBERT. 

FIRST  DEPARTMENT,  JULY  TERM,  1876. 

pelled  to  commence  an  action  to  recover  it,  and  the  person  for 
whose  benefit  the  seizure  is  made  not  only  refuses  to  surrender  it, 
but  by  answer  to  the  suit  thus  commenced  asserts  it  to  be  the  prop- 
erty of  the  debtor,  the  ratification  of  the  levy  is  complete  —  the 
assent  to  it  established  beyond  doubt.  The  necessary  legal  ele- 
ments are  thus  presented. 

"  The  ratification  is  made  with  full  knowledge  of  all  the  facts. 
(Seymour  v.  Wyckof,  10  N.  Y.,  213 ;  Brass  v.  Worth,  40  Barb., 
648,  654 ;  HoweU  v.  Christy,  3  Lans.,  242.)  The  learned  justice 
was  right  in  submitting  that  question  to  the  jury,  and  the  excep- 
tions taken  relating  thereto  cannot  be  sustained,  *  *  *  and 
the  duty  of  this  court  is  to  affirm  the  judgment." 

A.  J.  Vanderpoel,  for  the  appellants,  Gilbert  &  Weaver.  Ransom 
<&  Mete,  for  the  respondents. 

Opinion  by  BBADY,  J. ;  DAVIS,  P.  J.,  and  DANIELS,  J.,  concurred, 
Judgment  affirmed,  with  costs. 


DETKUM1NED  IN  THB 


THIRD   DEPARTMENT 


AT 


ENEEAL     TEEM, 
,  1876. 


REUBEN   E.  SPAN,  APPELLANT,  v.  HENRY   O.   ELT, 

RESPONDENT. 

Liability  of  master,  for  injuries  to  servant. 

The  defendant,  a  physician,  attended  a  woman  who  died  of  small  pox  and  sub- 
sequently employed  the  plaintiff  to  whitewash  the  house  in  which  the  death 
occurred.  The  plaintiff,  who  knew  that  the  woman  had  died  of  small  pox, 
entered  and  whitewashed  the  house,  relying  upon  the  assurances  of  the  defendant 
that  the  house  had  been  thoroughly  disinfected,  and  that  he  would  be  entirely 
safe  in  so  doing.  Plaintiff  having  contracted  the  disease  in  the  house,  subse- 
quently brought  this  action  to  recover  the  damages  sustained  thereby.  Held 
(1),  that  the  relation  between  the  parties  was  that  of  master  and  servant;  and 
(2),  that  the  plaintiff  was  entitled  to  recover  in  case  the  jury  should  find  on  all 
the  facts,  that  the  plaintiff  did  not  act  rashly  and  inexcusably  in  entering  the 
house  under  the  employment ;  and  further,  that  the  defendant  had  not  con- 
ducted towards  the  plaintiff  with  due  care  and  prudence. 

The  liability  of  a  master  for  injuries  sustained  by  the  servant  in  the  course  of  his 
employment,  considered. 

APPEAL  by  the  plaintiff  from  a  judgment  of  nonsuit,  and  also 
from  an  order  denying  a  motion  for  a  new  trial,  made  on  the  judge's 
minutes. 

Edward  K.  Clark,  for  the  appellant. 

K  O'Connor  and  W.  J.  Ludden,  for  the  respondent.  In  action* 
brought  by  a  servant  against  his  master  for  negligence,  the  burden  of 


256  SPAN  t>.  ELY. 


THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 


proof,  as  to  the  master's  knowledge  or  culpability  in  lacking 
knowledge,  rests  upon  the  plaintiff.  (Kunz  v.  Stewart,  I  Daly, 
431 ;  McMilland  v.  Saratoga,  etc.,  R.  R.  Co.,  20  Barb.,  449  ; 
Shearman  &  Redfield  on  Negligence,  §  99 ;  Buzzell  v.  Laconia 
Mfg.  Co.  48  Maine,  113.)  In  all  cases  in  which  it  is  necessary  to 
prove  a  scienter,  in  order  to  sustain  the  action,  the  complaint,  to 
be  good,  must  allege  such  scienter  or  knowledge  on  the  part  of  the 
defendant.  (Van  Santvoord's  PI.,  286 ;  1  Chitty  PL,  403,  and  3 
Dowl.,  769.)  Knowledge  on  the  part  of  the  defendant  of  the  danger 
and  risk,  is  the  gist  of  the  action.  (Looman  v.  Rockaway,  28  How., 
Pr.,  472 ;  25  N.  Y.,  566.)  The  plaintiff  knew  the  condition  of  the 
house,  and  voluntarily  assumed  the  risk,  whatever  it  was,  with  full 
knowledge  of  its  extent,  and  consequently  had  no  cause  of  action. 
(Bird  v.  Holbrook,  15  Eng.  Com.  Law  Rep.,  91,  93-96 ;  Loomis 
v.  Terry,  17  Wend.,  498,  499 ;  Hartfield  v.  Roper,  21  id.,  618,  619 ; 
Shearman  &  Redfield  on  Negligence,  §  88;  30  Barb.,  229;  5 
Ohio  St.,  541 ;  Wright  v.  N.  T.  C.  R.  R.  Co.,  25  N.  Y.,  567, 
568 ;  Ryan  v.  Fowler,  24  N.  Y.,  416;  Cruty  v.  Erie  Railway  Co., 

3  N.  Y.  S.  C.,  245.) 

i 

BOCKES,  J. : 

For  the  purpose  of  this  appeal,  the  following  may  be  assumed  as 
the  facts  of  the  case,  to  wit:  1.  That  the  defendant  employed  the 
plaintiff  to  whitewash  a  house  in  which  one  Fanny  Davis  had 
recently  died  of  the  small  pox.  2.  That  the  defendant  was  a 
physician  and  attended  such  person  during  her  sickness  and  until 
her  decease,  and  knew  that  she  had  such  contagious  disease,  and 
that  she  died  of  it.  3.  That  he  assured  the  plaintiff  that  the  house 
had  been  thoroughly  disinfected,  and  that  he  would  be  entirely  safe 
in  entering  and  whitewashing  it.  4.  That  the  plaintiff  entered  and 
whitewashed  the  house  under  the  defendant's  employment;  con- 
tracted the  disease  therein  and  remained  sick  for  a  considerable 
time,  suffered  greatly  and  was  put  to  great  loss  and  expense  by 
reason  thereof.  The  question  is,  whether  these  facts,  if  established, 
would  give  a  cause  of  action,  or  make  a  case  proper  to  be  submitted  to 
the  jury.  The  plaintiff  was  the  hired  servant  of  the  defendant.  The 
legal  relation  existing  between  the  parties  was  that  of  master  and  ser- 
vant. Then  what  duty  devolves  upon  the  master,  as  regards  the  expo- 


SPAN  v.  ELY.  257 


THIRD  DEPARTMENT,  SEPTEMBER  TEBM,  1870. 


•ure  of  his  hired  servant  to  an  infectious  disease  under  his  employ- 
ment? In  respect  to  injuries  to  the  person  of  the  servant  while 
engaged  in  his  master's  business  under  his  employment,  the  law  is 
supposed  to  be  well  settled.  If  the  servant  engage  with  knowledge 
of  the  dangerous  character  of  the  employment,  he  will  be  deemed, 
in  the  absence  of  any  qualifying  facts,  to  have  contracted  with  refer- 
ence thereto,  and  to  have  assumed  the  risks  incident  to  the  service. 
(Ryan  v.  Fowler,  24  N.  Y.,  410.)  But  the  principal  or  master  ia 
responsible  for  injuries  resulting  to  his  employees  from  his  per- 
sonal negligence  or  misfeasance.  (Keegan  v.  The  Western  R.  R, 
Co.,  8  N.  Y.,  175  ;  Warner  v.  Erie  Railway  Co.,  39  id.,  468 ;  Con- 
nolly v.  Poillon,  41  Barb.,  366;  Affd.  in  Ct.  App.,  41  N.  Y., 
619,  n.)  So  it  has  been  held  that  the  master  is  responsible,  in  case 
he  exposes  his  servant  to  unreasonable  risks  and  dangers.  In 
Noyes  v.  Smith  (28  Vt.,  59),  it  is  said  that  "  the  master  is  bound  to 
exercise  care  and  prudence,  that  those  in  his  employment  be  not 
exposed  to  unreasonable  risks  and  dangers ;  and  the  servant  has  a 
right  to  understand  that  the  master  will  exercise  that  diligence  in 
protecting  him  from  injury."  This  case  and  this  principle  have  been 
repeatedly  cited  in  our  courts  with  approval,  and  Judge  BKOWN  gives 
the  principle  significance  in  Connolly  v.  Poillon,  when  he  says  that 
in  determining  the  duty  of  the  master  to  his  servant,  reference  must 
be  bad  to  the  limited  means  of  knowledge  possessed  by  the  latter, 
and  to  the  fact  that  men  whose  business  is  the  lowest  forms  of 
human  labor  are  not  given  to  thought,  reflection,  and  foresight, 
and  therefore  some  one  must  usually  think  and  reflect  and  foresee 
for  them.  Now,  had  the  plaintiff  in  this  case  been  ignorant  of  the 
fact  that  the  house  was  infected,  and  the  defendant,  knowing  of  it, 
had  omitted  to  inform  him,  and  he  had  contracted  the  disease  while 
engaged  there  in  the  defendant's  service,  undoubtedly  the  defend- 
ant would  have  incurred  liability.  It  would  be  manifestly  impru- 
dent to  send  a  servant  to  labor  in  an  infected  house.  It  would 
expose  him  to  great  risk  and  danger  in  violation  of  the  plainest 
rule  of  right.  A  master  is  not  privileged,  knowingly,  to  put  his 
servant's  health  or  life  in  jeopardy,  without  informing  him  of  the 
risk  so  that  he  may  avoid  it.  So  it  has  been  well  said,  that  it  is 
the  master's  duty  to  be  careful  that  his  servant  be  not  induced  to 
work  under  the  supposition  and  belief  that  he  is  secure  from  danger, 
HUN— VOL.  VIII.  83 


258  SPAN  u.  ELY. 

THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 

•when  in  fact  the  master  knows,  or  ought  to  know,  that  it  is  not  so. 
In  Cesar  v.  Karute  (60  N.  Y.,  229)  the  defendant  leased  apartment* 
to  the  plaintiff  which  were  infected  with  the  small  pox,  of  which 
fact  the  former  had  notice  but  did  not  notify  the  plaintiff,  and  the 
latter  contracted  the  disease.  The  defendant  was  held  to  liability. 
(See,  also,  Jeffrey  v.  Bigelow,  13  Wend.,  518 ;  B.  and  A.  R.  R. 
Co.  v.  Shanly,  107  Mass.,  568;  Bai*ney  v.  Burnstetibinder,  64 
Barb.,  212  ;  Thomas  v.  Winchester,  6  N.  Y.,  397;  Vandenburgh  v. 
Truax,  4  Denio,  464.)  In  the  cases  here  cited,  as  well  as  in  the 
case  under  consideration,  the  rule  of  liability  is  made  to  stand  upon 
the  principle  of  right  and  fair  dealing  between  man  and  man, 
whatever  may  be  their  relation  to  each  other. 

In  this  case  the  plaintiff  was  informed,  before  his  employment 
by  the  defendant,  that  a  person  had  sickened  and  died  in  the  house 
of  the  small  pox.  Did  knowledge  of  this  fact  change  the  case  so 
as  to  relieve  the  defendant  from  liability  ?  The  decision  in  Patter- 
son v.  Wallace,  in  the  House  of  Lords  (28  Eng.  Law  and  Eq.,  48), 
Answers  this  question  in  the  negative,  or  rather  holds,  that  with 
such  knowledge,  accompanied  by  assurances  that  there  was  no 
danger  to  be  apprehended,  it  became  a  question  for  the  jury 
whether  due  care  and  caution  had  been  exercised.  In  the  case 
cited  the  injury  complained  of  occurred  to  a  miner,  who  was 
employed  by  the  defendant  to  work  in  his  coal  mine.  While 
engaged  in  taking  out  coal  a  stone  fell  from  the  roof  of  the  mine 
and  killed  him.  It  appeared  that  the  deceased  knew  of  the  danger- 
ous position  of  the  stone  and  had  often  complained  of  it  to  the 
defendant's  manager,  who  insisted  that  there  was  no  danger  to  be 
apprehended  from  it ;  he,  nevertheless,  promised  to  remove  it.  It 
was  first  held  in  this  case,  that  the  knowledge  of  the  deceased  that  the 
stone  was  in  a  dangerous  position,  barred  the  action  for  the  injury 
occasioned  by  its  fall ;  but  on  appeal,  this  decision  was  reversed. 
In  considering  the  case  on  appeal  the  lord  chancellor  first  laid 
down  the  rule  that  when  a  master  employs  a  servant  in  work  of  a 
particularly  dangerous  character,  he  is  bound  to  take  all  reasonable 
precautions  against  dangers  to  be  incurred  by  his  workman  ;  and 
he  then  proceeded  to  examine  the  question,  whether  knowledge  by 
the  workman  of  the  danger  which  existed  should,  in  that  case,  bai 
&  right  of  recovery  for  the  injury  which  ensued.  He  laid  particu- 


SPAN  v.  ELY.  259 


THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 


lar  stress  upon  the  assurances  by  the  manager  to  the  deceased  that 
there  was,  in  point  of  fact,  no  danger.  The  manager  had  told 
the  workmen  when  they  complained  of  the  danger  that  they 
were  "afraid  of  snow,  when  none  fell;"  in  effect,  that  there  was 
no  reason  to  apprehend  injury.  The  deceased  remonstrated, 
saying,  "  it  is  dangerous."  The  manager  replied  :  "  Why,  Robin, 
you  might  make  your  bed  below  it."  So  the  conclusion  was 
reached  by  the  lord  chancellor,  that,  in  consideration  of  these 
assurances  to  the  deceased  that  no  danger  was  to  be  apprehended 
or  incurred,  the  jury  might  find  that  there  was  no  rashness  of  con- 
duct on  the  part  of  the  deceased  ;  and  that  the  question  would 
remain  for  them,  whether,  on  the  whole  case,  the  master  had 
acted  toward  his  servant  with  due  care  and  prudence. 

Now,  let  us  turn  to  the  case  in  hand,  and  mark  the  strong  analogy 
on  this  point  between  that  and  the  one  cited.  Here  the  plaintiff 
knew  of  the  fact  that  the  house  had  been  recently  occupied  by  a 
person  having  the  small  pox.  The  defendant,  who  was  a  physician, 
applied  to  the  plaintiff  to  whitewash  the  house.  The  latter  said 
he  was  afraid.  The  defendant  then  told  him  there  was  no  danger ; 
that  the  house  had  been  thoroughly  cleansed  ;  that  he  would  guar- 
antee him  against  danger ;  that  if  there  was  any  danger  he  would 
say  so ;  or,  in  substance,  all  this,  with  other  assurances,  that  he 
would  incur  no  risk  in  doing  the  work.  Thereupon  the  plaintiff 
accepted  the  employment.  Now,  with  this  evidence,  according  to 
the  decision  in  Patterson  v.  Wallace  (supra),  it  was  for  the  jury 
to  say,  on  all  the  facts  of  the  case,  whether  the  plaintiff  had  acted 
rashlj  and  inexcusably  in  entering  the  house  under  the  employ- 
ment; and  whether  the  defendant  had  acted  toward  the  plain- 
tiff with  due  care  and  prudence.  There  were  other  questions,  of 
course,  for  the  consideration  of  the  jury.  It  was  a  question  of  fact, 
on  the  proof,  whether  the  plaintiff  contracted  the  disease  at  the 
infected  house,  as  there  was  some  proof  of  his  exposure  to  the  dis- 
ease elsewhere.  As  the  case  is  here  presented,  it  should  have  been 
submitted  to  the  jury  on  all  the  evidence,  with  proper  remarks  and 
instructions  by  the  court  on  all  the  questions  of  fact  presented  by 
the  pleadings  and  the  evidence.  The  nonsuit  and  dismissal  of  the 
complaint  were  erroneous.  A  new  trial  must  be  granted. 


260  BURROWS  v.  WHITAKEK. 

THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 

LEARNED,  P.  J. : 

I  concur  in  this  result.  But  it  should  be  noticed,  I  think,  that 
the  pleadings  admit  that  the  representations  made  by  the  defendant 
were  untrue ;  and  that  it  is  proved  that  one  of  these  representations, 
admitted  to  be  untrue,  was  that  the  house  had  been  thoroughly 
cleansed,  which  was  a  matter  of  fact  not  of  opinion  ;  and  further, 
that  the  defendant  was  the  health  officer  of  the  place  and  a  physi- 
cian ;  on  whose  statements,  therefore,  the  plaintiff  might  rely. 

Present  —  LEARNED,  P.  J.,  and  BOOKES,  J.  BOARDMAN,  J.,  taking 
no  part. 

Judgment  and  order  reversed  ;  new  trial  granted,  costs  to  abide 
event. 


JESSE    O.    BURROWS,   RESPONDENT,  v.   STEPHEN    F. 
WHITAKER,  APPELLANT. 

Contract  of  tale  —  when  title  passes  —  Delivery  —  acts  to  designate  a/riidet  —  to  atcer- 
tain  their  value  —  distinction. 

Defendant  agreed  to  purchase  of  the  plaintiff  all  the  lumber  he  should  deliver, 
prior  to  the  spring  or  rafting  freshet,  at  a  place  on  the  Delaware  river  to  be 
provided  by  the  defendant,  who  also  agreed  to  furnish  a  man  to  receive  and 
cull  the  same,  and  to  pay  therefor  eleven  dollars  per  thousand  for  all  good 
lumber,  and  five  dollars  and  fifty  cents  for  the  culled ;  the  amount  of  lumber  to 
be  counted  while  on  the  bank  or  estimated  when  in  a  raft  In  pursuance  of 
this  contract  plaintiff  delivered  lumber  at  the  place  to  a  man  employed  by  the 
defendant  to  receive  and  cull  it;  before  the  lumber  had  been  counted  or 
estimated  a  portion  of  it  was  carried  away  by  a  freshet  Held,  that  the  title 
to  the  lumber  passed  to  the  defendant  upon  its  delivery  at  the  designated 
place,  and  that  he  was  liable  for  the  price  thereof. 

If  the  act  remaining  to  be  done  is  one  of  specification  the  title  does  not  pass;  if 
only  to  ascertain  the  total  value  at  designated  rates,  the  title  does  pass. 

APPEAL  by  the  defendant  from  an  order  denying  a  motion  for  a 
new  trial  made  on  the  judge's  minutes,  and  also  from  a  judgment 
in  favor  of  the  plaintiff,  entered  on  the  verdict  of  the  jury. 

The  action  was  brought  to  recover  for  a  quantity  of  sawed  lum- 
ber, alleged  to  have  been  sold  and  delivered  by  the  plaintiff  to  the 
defendant.  The  answer  was  a  general  denial  and  payment. 


BURROWS  v.  WHITAKER. 


THIBD  DEPARTMENT,  SEPTEMBER  TEKM,  1876. 

On  the  trial  the  plaintiff  gave  evidence  tending  to  show  a  sale 
of  the  lumber  and  its  delivery  on  the  bank  of  the  Delaware  river, 
where  it  was  agreed  that  it  should  be  deposited.  -  While  the  lumber 
was  lying  on  the  bank  of  the  river  a  portion  of  it  was  carried  away 
by  a  freshet.  The  defendant  accepted  and  paid  for  the  remainder, 
but  refused  to  pay  for  what  was  lost  by  the  freshet,  and  this  action 
was  brought  to  recover  therefor.  The  jury  found  a  verdict  for  the 
plaintiff  for  $910.82.  A  motion  was  made  for  a  new  trial  on  the 
judge's  minutes,  which  was  denied.  Judgment  being  entered  on 
the  verdict  an  appeal  was  taken  therefrom,  and  also  from  the  orJer 
denying  a  new  trial. 

The  question  on  the  trial  was  whether,  by  the  terms  of  the  con- 
tract of  sale,  which  was  oral,  the  title  to  the  lumber  passed  to  the 
defendant  on  depositing  and  leaving  it  for  the  defendant  on  the 
bank  of  the  river.  It  was  also  insisted  that  there  was  evidence 
tending  to  show  its  actual  acceptance.  The  facts  necessary  to  the 
consideration  of  the  questions  presented  on  the  appeals  are  given 
in  the  following  opinion. 

Chapman  de  Martin,  for  the  appellant. 

A.  C.  Moses  and  Giles  W.  Hotchkiss,  for  the  respondent. 

BOCKES,  J. : 

There  was  no  dispute  as  to  the  general  facts  of  the  case.  That 
there  was  an  agreement  between  the  parties  for  the  purchase  and 
sale  of  the  lumber  was  admitted  by  both,  and  its  terms  were 
given  by  them  alike  except,  perhaps,  as  to  the  single  point  of 
delivery.  The  contract  was  made  in  the  spring  of  1872.  The  defend- 
ant agreed  to  pay  the  plaintiff  eleven  dollars  per  thousand  for  all 
the  good  lumber,  and  five  dollars  fifty  cents  for  all  the  culled  lumber, 
the  latter  should  deliver  at  Traver's  eddy,  on  the  bank  of  the  Dela- 
ware river,  prior  to  the  first  rafting  freshet  in  the  spring  of  1873,  the 
defendant  agreeing  to  have  a  man  at  the  place  of  delivery  to  cull 
and  pile  it.  Under  this  contract  the  plaintiff  commenced  to 
deliver  the  lumber  at  the  place  designated,  in  the  early  part  of 
December,  and  continued  such  delivery  until  about  the  middle 
of  January  following  or  perhaps  a  little  later ;  the  defendant  fur- 


262  BUKROWS  v.  WHITAKER. 

THIKD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 

nishing  a  man  as  he  had  agreed  to  do,  who  assisted  in  unloading 
and  directed  the  culling  and  piling  it.  During  the  time  of  such 
delivery,  and  on  the  seventeenth  January,  there  occurred  an  ice 
freshet  which  washed  away  the  lumber  in  dispute.  The  case 
turned  on  the  question,  whether  there  had  been  such  a  delivery  of 
the  property  washed  away  as  to  vest  the  title  to  it  in  the  defendant. 
Let  us  now  turn  our  attention  to  the  proof  bearing  on  the  question 
of  delivery.  The  plaintiff  testified  as  follows:  ''He  said  he  would 
buy  it  on  the  bank,  if  I  would  deliver  it  on  the  bank  at  Traver's 
eddy.  *  *  *  We  talked  it  over  a  few  minutes  and  I  finally 
told  him  he  could  have  it  on  the  bank.  *  *  *  It  was  agreed 
upon  that  he  should  furnish  a  man  to  pile  it.  *  *  *  He  didn't 
want  the  culls  in,  as  it  would  hinder  him  about  rafting,  and  he 
would  cull  it  and  pile  it  so  as  to  have  it  handy  to  raft.  *  *  * 
I  think  I  asked  him  how  we  should  get  at  the  amount,  and  after 
talking  awhile  we  said  to  each  other  that  we  would  either 
count  it  or  estimate  it ;  either  count  it  on  the  bank  or  esti- 
mate it  in  the  raft."  On  his  cross-examination,  he  said,  "  it 
was  to  be  either  counted  on  the  ground  or  estimated  in  the 
raft ;  it  was  not  decided  which ; "  and  again,  "  it  was  either  to 
be  counted  on  the  bank  or  estimated  in  the  raft,  when  rafted." 
The  defendant  testified  that  the  lumber  "  was  to  be  counted  on 
the  bank,  in  the  spring  when  we  rafted ;  when  spring  opened 
I  was  to  take  the  lumber  and  have  it  counted  or  estimated  when 
rafted  in  the  raft."  He  denied  that  he  agreed  to  furnish  a  man  to 
receive,  cull  and  pile  the  lumber  as  it  was  being  drawn.  Such  was 
the  substance  of  the  evidence  on  this  point ;  and  it  is  readily  seen 
that  it  was  not  so  entirely  uncontradictory  and  positive  as  to  leave 
the  question  as  to  the  change  of  title  a  mere  matter  of  law. 
Precisely  what  the  parties  agreed  upon  in  regard  to  the  delivery 
became  a  question  of  fact,  to  be  determined  on  a  consideration  of 
the  evidence  as  given  by  the  parties,  not  entirely  harmonious, 
viewed  under  the  light  of  the  circumstances  attending  the  trans- 
action. Had  the  contract  been  in  writing,  in  the  absence  of 
any  latent  ambiguity,  the  question  would  have  been  one  of 
law  on  the  instrument  itself;  a  simple  question  of  legal  con- 
struction. But  here  the  parties  differed  somewhat,  both  as  to 
what  was  said  at  the  time  the  bargain  was  entered  into  and 


BURROWS  v.  WHITAKER.  263 

THIBD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 

as  to  their  subsequent  action  in  carrying  it  into  effect.  Such 
action  is  frequently  of  significance  in  determining  the  purport  of 
a  contract,  where  its  construction  is  a  subject  of  doubt.  This  was 
a  case  open  to  examination  on  all  the  evidence  as  a  question  of 
fact,  whether  the  deposit  of  the  lumber  on  the  bank  of  the  river 
constituted  an  absolute  and  perfected  delivery  of  it,  pursuant  to 
the  contract  between  the  parties.  The  parties  had  testified,  each 
to  his  own  version  of  the  contract;  they  were  not  entirely  har- 
monious in  their  statements ;  the  defendant  provided  the  place  of 
deposit  on  the  bank  of  the  river ;  he  furnished  a  man  to  pile,  cull 
and  count  it  as  it  was  there  deposited ;  the  plaintiff  testified  that 
he  agreed  to  furnish  a  man  so  to  receive  it ;  the  lumber,  or  part  of 
it,  was  rafted  without  further  or  mutual  inspection ;  there  were 
declarations  of  the  defendant  of  some  significance  as  to  his  inter- 
pretation and  understanding  of  the  contract.  Under  this  condition 
of  the  case  it  was  properly  submitted  to  the  jury  for  their  deter- 
mination as  a  question  of  fact :  (1)  As  to  what  the  contract  was, 
and  (2)  whether  there  was  an  absolute  and  perfected  delivery  of 
the  lumber  under  the  contract. 

It  is  insisted  on  the  part  of  the  defendant,  that,  accepting  the 
statement  of  the  plaintiff  himself,  and  wholly  rejecting  all  evidence 
conflicting  with  it,  the  lumber  was  to  be  counted  on  the  bank  of 
the  river  in  the  spring,  or  estimated  in  the  raft  when  rafted; 
neither  of  which  was  done  as  regards  what  was  carried  away  by 
the  freshet,  hence  there  was  no  delivery  of  it  so  as  to  vest  the  title 
thereto  in  the  defendant.  It  is,  indeed,  a  very  familiar  rule,  that 
title  to  property  sold  does  not  vest  in  the  vendee  until  delivery  — 
actual  or  constructive;  and  so  it  has  become  a  well  settled  rule 
that  title  does  not  pass  to  the  vendee,  so  long  as  any  thing  remains 
to  be  done  to  ascertain  the  identity,  quantity,  quality  or  price  of 
the  property ;  that  is,  in  case  either  of  these  acts  was  by  the  fair 
construction  and  import  of  the  contract  to  precede  or  accompany 
delivery.  The  rule  has  been,  perhaps,  more  clearly  stated  thus : 
that  where,  after  a  sale  of  goods,  some  act  remains  to  be  done  by 
either  the  vendee  or  vendor  before  delivery,  the  property  does  not 
vest  in  the  vendee,  but  continues  at  the  risk  of  the  vendor. 
The  cases  bearing  on  this  subject  are  collected  and  commented 
on  by  Mr.  Justice  HAND,  in  Evans  v.  Harris  (19  Barb.,  416),  with 


264  BURROWS  v.  WHITAKER. 

THIUD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 

few,  if  any,  omissions  of  those  reported  prior  to  that  time  (1853). 
And  all  later  cases  are  probably  in  consonance  with  those  there 
cited.  The  question  here  is,  whether  the  contract  was  executed  as 
to  the  lumber  deposited  on  the  bank  and  received  there  by  the  per- 
son designated  by  the  defendant  to  receive  it,  so  fast  as  it  was  so 
deposited ;  or  whether  it  remained  executory  until  counted  in  the 
spring  or  estimated  in  the  raft.  The  plaintiff  insists  that  it  was 
the  agreement  between  the  parties  that  the  title  should  pass  on 
delivering  the  lumber  on  the  bank.  The  plaintiff  likens  this  case 
to  Crofoot  v.  Bennett  (2  N.  Y".,  258),  where  the  bricks  sold  were  not 
counted  out,  marked  or  separated  from  the  residue  in  the  kiln,  yet 
it  was  held  that  the  title  passed  to  the  vendee.  Tn  this  case  it  was 
said  that  where  goods  are  clearly  identified,  then,  although  it  may 
be  necessary  to  number,  weigh,  or  measure  them,  in  order  to  ascer- 
tain what  would  be  the  price  of  the  whole  at  a  rate  agreed  upon 
between  the  parties,  the  title  will  pass.  It  was  here  further  said, 
that  the  distinction  to  be  observed  in  the  cases  does  not  depend  so 
much  upon  what  is  to  be  done,  as  upon  the  object  which  is  to  be 
effected  by  it.  If  that  is  specification,  the  property  is  not  changed  ; 
if  it  is  merely  to  ascertain  the  total  value  at  designated  rates,  the 
change  of  title  is  effected.  The  doctrine  of  this  case  has  been 
repeatedly  recognized  and  sanctioned  in  more  recent  decisions,  and 
stands  upon  a  sound  basis.  (See  "Wait's  Table  of  Cases  under 
Orofoot  v.  Bennett ;  see,  also,  Dexter  v.  Bevins,  42  Barb.,  573  ; 
Tyler  v.  Strong,  21  id.,  200;  Macomber  v.  Parker,  13  Pick.,  175 ; 
Riddle  v.  Varnum,  20  id.,  280 ;  Russell  v.  Carrington,  42  N.  T., 
118.)  In  McLComher  v.  Parker  (wpra),  it  was  laid  down  that 
where  a  quantity  of  goods  bargained  for  at  a  certain  rate  is  actually 
delivered  the  sale  is  complete,  notwithstanding  the  goods  are  to  be 
counted,  weighed,  or  measured  in  order  to  ascertain  the  amount  to 
be  paid  for  them.  Now,  assuming  it  to  be  true,  as  the  plaintiff  tes- 
tified, that  the  delivery  was  to  be  made  on  the  bank  of  all  the  lum- 
ber he  should  see  fit  to  place  there  prior  to  the  spring  or  rafting 
freshet ;  that  the  defendant  provided  the  place  of  its  deposit,  and 
agreed  to  have  a  man  there  to  receive  it,  and  that  he  was  there  and 
did  receive  it,  culling  it  as  it  was  delivered ;  even  if  the  contract 
was  that  the  amount  to  be  paid  should  be  determined  in  the  spring 
by  counting  or  estimating,  the  title  passed  according  to  the  deci- 


POPE  v.  HANMER.  265 


THIBD  DEPARTMENT,  SEPTEMBER  TEBM,  1876. 


sions  above  cited.  The  plaintiff  says  :  "  I  think  I  asked  him  how 
we  should  get  at  the  amount,  and  after  talking  awhile,  we  said 
to  each  other  that  we  would  either  count  it  or  estimate  it ;  either 
count  it  on  the  bank  or  estimate  it  in  the  raft."  Now,  here  the 
property  was  identified  by  its  delivery  on  the  defendant's  banking 
ground,  and  by  its  reception  by  his  agent  or  servant.  The  count- 
ing or  estimating  was  not  necessary  for  identification.  It  was  in 
the  defendant's  actual  possession,  and  under  his  control,  for  he  con- 
templated putting  it  in  the  raft  before  estimating  it,  if  he  should  so 
elect.  The  price  was  settled  ;  and  the  counting  or  estimating  was 
merely  to  determine  the  amount  with  a  view  to  payment.  Thus 
the  case  was  directly  within  the  decisions  cited.  It  must  be  held 
that  the  title  to  the  lumber  passed  to  the  defendant  on  its  delivery 
on  the  bank  of  the  river.  There  was  no  error  in  the  admission  or 
rejection  of  evidence  calling  for  a  reversal  of  the  judgment. 

The  order  and  judgment  appealed  from  must  be  affirmed,  with 
costs. 

LEARNED,  P.  J.,  concurred.     BOAHDMAN,  J.,  not  acting. 
Judgment  and  order  affirmed,  with  costs. 


JAMES    POPE,    RESPONDENT,    v.    LEWIS    HANMER, 
APPELLANT. 

Adverse  possession  —  substantial  indosure — Cultivation  and  improvement — Code,  §  85. 

In  this  action,  brought  to  recover  damages  for  a  trespass  committed  upon  the 
land  of  the  plaintiff,  the  defendant  claimed  to  hold  the  lot  by  adverse  possession. 
It  appeared  upon  the  trial  that  the  lot  was  inclosed  on  one  side  by  a  highway, 
on  two  sides  by  fences  and  on  the  remaining  side  by  a  distinct  line  of  marked 
trees  from  corner  stake  to  corner  stake.  Held,  that  the  lot  was  not  protected 
by  a  substantial  inclosure  within  the  meaning  of  subdivision  1  of  section  85 
of  the  Code. 

It  further  appeared  upon  the  trial,  that  the  defendant  had  occasionally  used  the  lot, 
(a  wood-lot)  as  a  pasture,  and  that  he  had,  now  and  then,  taken  wood  and  timber 
from  It  for  shingles  and  staves.  Held,  that  this  did  not  show  it  to  have  been 
usually  cultivated  or  improved,  within  the  meaning  of  subdivision  2  of  sectiom 
86  of  the  Code. 

HUN— VOL.  VIII.         34 


266  POPE  v.  HANMER. 


THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 


APPEAL  by  the  defendant  from  an  order  denying  a  motion  for  i 
new  trial,  made  on  a  case  and  exceptions. 

The  action  was  trespass  for  unlawfully  entering  upon  the  plain- 
tiff's land  and  cutting  and  carrying  away  a  quantity  of  wood. 

The  defense  set  up  was  a  general  denial,  title  and  possession  in 
the  defendant,  and  adverse  possession.  The  case  was  tried  by  jury, 
and  a  verdict  of  five  dollars  damages  was  rendered  against  the 
defendant.  Thereupon  a  case  with  exceptions  was  made  and 
settled,  and  a  motion  thereon  was  made  at  Special  Term,  for  a  new 
trial,  which  motion  was  denied.  An  appeal  was  then  taken  to  the 
General  Term.  The  questions  raised  on  the  appeal  appear  in  the 
opinion. 

C.  S.  Baker,  for  the  appellant.  The  land  was  substantially 
inclosed  and  cultivated  or  improved.  It  was  used  for  the  supplying 
fuel  (wood-lot).  (Beecher  v.  Van  Valkenburgh,  29  Barb.  S.  C.,  319 : 
Craig  v.  Goodman,  22  N.  Y.  R.,  170  ;  1  Hilliard  on  Real  Property 
[4th  rev.  ed.],  66,  note  and  cases  cited ;  Dominy  v.  Miller,  33 
Barb.  S.  C.,  386.) 

J.  McGuire,  for  the  respondent.  Where  a  party  has  no  paper 
title,  a  possession  ur  occupation  to  be  adverse  must  be  an  actual 
enjoyment  of  the  land  for  agricultural  purposes,  such  as  plowing, 
sowing,  erection  of  buildings,  making  improvements  generally. 
(Doolittle  v.  Tice,  41  Barb.,  181 ;  Lane  v.  Gould,  10  id.,  254 ;  Doe 
v.  Campbell,  10  Johns..  477*  Jackson  v.  Wheat,  18  id.,  338;  Jack- 
son v.  Warford,  7  Wend.,  62 ;  Corning  v.  Troy  Iron  and  Nail  Fac- 
tory, 34  Barb.,  529,  affirmed  in  44  N.  Y.,  577.)  The  defendant's  deed 
confining  him  to  lands  on  lot  three,  he  has  no  constructive  possession 
of  any  land  on  lot  four.  (Jackson  v.  Woodruff,  1  Cow.,  286,  505; 
Tyler  on  Eject.,  etc.,  895,  and  cases  cited.)  The  plaintiff  had  pos- 
session of  the  land,  and  the  action  could  be  maintained.  When  a 
party  has  a  deed  for  an  entire  lot  of  land,  a  part  of  which  is  under 
actual  occupation,  within  a  substantial  inclosure,  the  legal  effect  of 
the  deed  is  to  enlarge  the  occupation  and  to  create  a  constructive 
possession  of  the  remainder.  (Jackson  v.  Woodruff,  1  Cow.,  276 ; 
Jackson  v.  Bowen,  1  Caines,  358 ;  Jackson  v.  Olitz,  8  Wend.,  440 ; 
Wickham  v.  Freeman,  12  Johns.,  183  ;  Jackson  v.  Hazen,  2  id.,  22 ; 
Miller  v.  Shaw,  7  Serg.  &  Rawle,  143.) 


POPE  v.  HANMER.  267 

THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 

BOOKES,  J. : 

The  parties  were  owners  of  adjoining  lands,  the  plaintiff  on  the 
south  and  the  defendant  on  the  north  of  the  dividing  line.  There 
had  been  a  fence  for  many  years  on  the  north  of  the  plaintiff's  cul- 
tivated land,  inclosing  it  on  that  side  and  separating  it  from  the 
uncultivated  wood  and  timber  land,  which  fence  the  plaintiff 
insisted  was  at  a  considerable  distance  south  of  the  true  line,  and 
was,  as  he  claimed,  erected  and  maintained  for  his  own  convenience. 
The  defendant,  on  the  other  hand,  claimed  and  insisted  that  this 
fence  marked  the  southern  boundary  of  his  lot,  and  the  action  was 
brought  against  him  for  entering  upon  and  cutting  wood  on  the 
strip  of  land  situated  between  what  the  plaintiff  claimed  to  be  the 
true  line  and  the  fence.  Much  evidence  was  given  bearing  on  the 
issue,  and  it  may  be  here  observed  that  no  question  is  raised  on  this 
appeal,  in  regard  to  the  admission  or  rejection  of  evidence.  The 
first  point  urged  upon  our  consideration  is,  that  the  court  erred  in 
refusing  to  direct  a  verdict  for  the  defendant  on  the  evidence. 
There  was  very  manifestly  no  error  in  such  ruling.  Without  reca- 
pitulating the  evidence  and  its  bearings,  it  is  sufficient  to  say  that  a 
case  was  made  for  the  jury  on  the  proof.  There  was  a  question  of 
fact  certainly  on  the  evidence  as  to  the  location  of  the  true  line, 
and  also  on  the  question  of  practical  location,  supposing  that  the 
fence  did  not  mark  the  true  line.  These  questions  were  properly 
given  over  to  the  jury,  and,  on  this  appeal,  must  be  deemed  settled 
by  the  verdict.  The  jury  found,  as  they  had  a  right  to  find  on  the 
evidence  submitted,  that  the  true  line  between  the  premises  of  the 
respective  parties  was  north  of  the  fence,  and  would  include  and 
give  to  the  plaintiff  the  lands  where  the  alleged  trespasses  were  com- 
mitted ;  and  further,  that  there  had  never  been  any  practical  location 
of  the  line  between  the  parties,  by  the  owners  on  the  north  and  south 
of  it,  which  barred  the  plaintiff's  right  to  insist  on  the  true  line  as  the 
northern  boundary  of  his  land.  Thus  the  verdict  determines  the 
rights  of  the  parties,  unless  obtained  or  rendered  under  some  errone- 
ous instruction  by  the  court  to  the  jury.  This  brings  us  to  the  con- 
sideration of  the  only  important  question  presented  by  this  appeal. 
On  submitting  the  case  to  the  jury,  the  learned  judge  held  and 
charged  that  there  was  no  question  of  adverse  possession  in  the 
case.  He  said :  There  is  no  claim  depending  upon  adverse  posses- 


268  POPE  v.  HANMER. 


THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 


sion,  for  the  reason  that  the  property  in  dispute  is  wood-land,  and 
was  incapable  of  actual  possession  or  use ;  consequently  the  prin- 
ciple of  adverse  possession  as  establishing  title  to  land  does  not 
come  into  the  controversy.  This  ruling  must  be  considered  in 
view  of  the  provisions  of  sections  83,  84  and  85  of  the  Code  of 
Procedure.  Section  83  declares  what  shall  constitute  adverse  pos- 
session "  under  written  instrument  or  judgment."  This  section 
need  not  be  here  considered,  inasmuch  as  the  defendant  made  no 
claim  to  any  part  of  lot  number  four  under  either.  His  train  of 
title  did  not  purport  to  convey  any  part  of  lot  number  four.  Sec- 
tion 84  provides  that  when  the  adverse  holding  is  under  claim  of 
title,  not  founded  upon  a  written  instrument,  *  *  *  the 
premises  actually  occupied,  and  no  other,  shall  be  deemed  to  have 
been  held  adversely,  and  section  85  declares  what  shall  be  deemed 
an  actual  occupation,  to  wit :  (1)  Where  the  land  has  been  pro- 
tected by  a  substantial  iuclosure ;  and  (2),  where  it  has  been  usually 
cultivated  and  improved.  As  above  suggested,  the  facts  proved 
did  not  bring  the  case  within  the  purview  of  section  83.  The 
defendant  showed  no  paper  title,  or  claim  founded  on  a  written 
instrument,  to  any  part  of  lot  four,  on  which  the  locus  in  quo  was 
situated.  If  his  title  in  fact  embraced  the  locus  in  quo  as  part  of 
lot  three,  there  was  no  question  of  adverse  possession  whatever, 
for  it  was  not  disputed,  indeed  was  conceded,  that  he  owned  to  the 
eouth  line  of  lot  three,  wherever  that  might  be  in  fact,  or  as  estab- 
lished by  practical  location,  and  the  location  of  the  line  to  which 
it  was  conceded  the  defendant  had  title  was  left  to  the  decision  of 
the  jury  on  the  evidence.  Thus  it  is  seen  that  the  defendant  had 
no  title,  nor  did  he  make  claim  of  title  upon  a  written  instrument, 
to  any  land  south  of  the  line,  wheresoever  that  line  should  be  found 
to  be,  either  in  point  of  fact  or  by  practical  location.  Consequently 
his  case  on  the  proof  was  not  brought  within  the  purview  of  sec- 
tion 83.  If  he  had  any  case  for  an  application  of  the  law  of  adverse 
possession,  it  was  because,  having  title  to  all  or  part  of  lot  three, 
possession  had  been  extended  in  good  faith  over  part  of  lot  four, 
on  the  mistaken  supposition  that  the  train  of  title  in  fact  embraced 
the  land  and  justified  such  possession.  (Hollas  v.  Bell,  53 
Barb.,  247.)  But  a  claim  of  adverse  possession  under  such  a 
state  of  facts  is  controlled  by  sections  84  and  85  of  the  Code 


POPE  v.  HANMER.  269 


THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 


of  Procedure.  It  would  be  the  case  of  a  party  claiming  title 
not  founded  upon  a  written  instrument ;  in  which  case  the  premises 
actually  occupied,  and  no  other,  shall  be  deemed  to  have  been  held 
adversely.  (Code,  §  84.)  Now,  for  the  purpose  of  considering  the 
question  under  discussion,  the  locus  in  quo  must  be  regarded  as 
south  of  the  line,  or  not  within  the  description  contained  in  the 
defendant's  line  of  title.  Then,  was  the  possession  by  the  defend- 
ant and  by  his  predecessors,  of  the  locus  in  quo,  an  actual  posses- 
sion within  the  requirements  of  the  law  ?  This  is  to  be  determined 
by  section  85  which  provides  that,  "  for  the  purpose  of  constituting 
an  adverse  possession  by  a  person  claiming  title  not  founded  upon 
a  written  instrument  or  a  judgment  or  decree,  land  shall  be  deemed 
to  have  been  possessed  and  occupied  in  the  following  cases  only  :  (1) 
Where  it  has  been  protected  by  a  substantial  inclosure ;  (2)  where 
it  has  been  usually  cultivated  and  improved."  (Code,  §  85.)  It 
cannot  be  maintained  that  the  locus  in  quo  in  this  case  was  pro- 
tected by  a  substantial  inclosure.  The  premises  claimed  by  the 
defendant  were  not  so  inclosed.  Accept  the  statement  of  the  defend- 
ant's counsel,  as  given  in  his  points,  that  it  was  "  inclosed  on  two 
sides  by  fences,  a  highway  on  another  and  a  distinct  line  of  marked 
trees  from  corner  stake  to  stake  on  the  other,"  and  the  lot  could 
not  be  deemed  protected  by  a  substantial  iucloM;;e.  (Doolittle  v. 
Tice,  4:1  Barb.,  182.)  Corner  stakes  do  not,  nor  does  a  line  of 
marked  trees,  constitute  a  substantial  inclosure.  Then,  was  the 
defendant's  possession  and  that  of  his  predecessors  such  as  was 
required  by  subdivision  2  of  section  85  with  a  view  to  the  estab- 
lishment of  title  by  adverse  possession  ?  Had  the  locus  in  quo  or 
the  defendant's  lot,  of  which  it  was  a  part  as  claimed,  been  usually 
cultivated  or  improved  ?  The  lot  was  a  wood-lot,  and  the  utmost 
that  was  proved  as  to  possession  even  (to  say  nothing  as  to  cultiva- 
tion and  improvement)  was  an  occasional  pasturing  upon  it,  and 
now  and  then  getting  wood  and  timber  for  shingles  and  staves,  and 
this  only  to  a  very  inconsiderable  and  limited  extent.  To  adopt 
the  language  of  the  learned  judge  in  Doolittle  v.  Tice  (supra),  there 
is  no  evidence  that  the  defendant  adopted  any  of  the  means  usually 
employed  to  improve  the  land.  He  never  plowed,  sowed  or  tilled 
't,  and  it  was  then  added,  that  this  statute  had  in  view  the  ordinary 
cultivation  and  improvement  of  lands,  in  the  manner  in  which  they 


270  POPE  w.  HANMER 


THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 


are  usually  occupied,  used  and  enjoyed  by  farmers  for  agricultural 
purposes,  such  as  plowing,  sowing,  manuring  and  the  like.  In  this 
case  there  can  be  no  pretense  that  the  defendant  had  thus  cultivated 
or  improved  the  lot.  (See,  also,  Lane  v.  Gould,  10  Barb.,  254.) 
In  the  last  case  cited  the  rule  was  laid  down,  that  to  make  out  an 
adverse  possession  of  lands  so  as  to  vest  the  title,  where  there  is  no 
deed  or  other  written  instrument,  there  must  be  a  real  substantial 
inclosure  —  an  actual  occupancy  —  &pedis  possessio,  definite,  posi- 
tive and  notorious,  or  they  must  have  been  usually  cultivated  or 
improved.  As  regards  an  actual  possession  —  a  pedis  possessio — 
with  a  view  to  establish  title  by  adverse  holding,  in  a  case  like  the 
one  in  hand,  Jackson  v.  Woodruff  (1  Cow.,  286)  is  in  point.  (See, 
also,  Crary  v.  Goodman,  22  N.  Y.,  170-173,  174,  175.)  These 
cases  declare  the  rule  to  be  that  where  a  grantee,  in  taking  posses- 
sion under  his  deed,  goes  unintentionally  and  by  mistake  beyond 
his  proper  boundaries,  and  enters  upon  and  actually  occupies  and 
improves  lands  not  included  in  the  deed,  claiming  and  supposing 
them  to  be  his,  such  occupation  will  be  deemed  adverse  within  the 
meaning  of  the  statute  of  limitations,  but  only  to  the  extent  of  his 
actual  occupancy  by  cultivation  and  improvement.  So  where  a 
party  rests  upon  his  possession  of  land,  outside  the  description  in 
his  deed,  the  possession,  to  be  effectual  as  an  adverse  possession, 
must  be  an  actual  occupation  by  improvement  and  cultivation.  If 
the  above  conclusions  be  sound,  and  they  seem  to  stand  on  authority, 
the  learned  judge  was  right  in  his  instructions  to  the  jury,  that  the 
question  of  adverse  possession  was  not  in  the  case.  There  was  no 
evidence  submitted  on  which  the  defendant  could  predicate  a  title 
to  the  locus  in  quo,  by  adverse  possession.  So,  also,  these  conclu- 
sions make  the  case  one  where  the  possession  must  in  law  be 
deemed  to  accompany  the  legal  title,  hence  trespass  might  be 
maintained  by  the  party  holding  such  title.  It  seems,  therefore, 
that  the  case  was  properly  disposed  of  at  the  Circuit,  and  the  ordei 
appealed  from  should  be  affirmed,  with  costs. 

LEARNED,  P.  J.,  concurred.     BOARDMAN,  J.,  not  acting. 
Order  affirmed,  with  costs. 


WILLIAMS  v.  PEABODY.  271 

THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 


HIRAM  WILLIAMS,   RESPONDENT,  v.  FANNY   PEABODY 

APPELLANT. 

Vested  remainder — action  to  restrain  waste  —  who  can  maintain  —  Residuary  lep 
atee  —  when  he  may  compel  a  discovery  of  personalty  held  by  life  beneficiary. 

The  plaintiff  was  the  owner  of  an  estate  in  certain  laud  for  the  life  of  B. ,  to  com 
mence  upon  the  termination  of  an  estate  of  the  defendant  therein  for  the  term 
of  her  natural  life.  Held,  that  he  had  a  vested  remainder  therein,  and  could 
maintain  an  action  to  restrain  the  defendant  from  the  commission  of  waste. 

Defendant  was  entitled,  under  the  will  of  her  deceased  husband,  to  use  certain 
personal  property,  in  her  due  discretion,  for  any  purpose  and  in  any  reasonable 
manner,  and  in  such  use  to  consume  and  exhaust  the  same,  if  necessary  for  her 
own  care  and  support,  and  the  plaintiff  was  entitled  to  receive  whatever  might 
remain  after  her  death.  Held,  that  he  was  entitled  to  maintain  an  action  to 
compel  the  defendant  to  render  an  account  as  to  the  items  of  personal  property 
received  by  her,  no  inventory  thereof  having  ever  been  made. 

APPEAL  by  the  defendant  from  a  judgment  in  favor  of  the  plain- 
tiff, directed  by  a  justice  of  this  court,  before  whom  the  action  was 
tried  without  a  jury.  The  action  was  an  action  of  waste,  and  for 
an  accounting  in  regard  to  personal  property.  The  plaintiff 
demanded  judgment  for  damages ;  also  for  forfeiture  of  the  defend- 
ant's estate,  and  for  protection  of  his  rights  in  the  personal  prop- 
erty. By  the  judgment,  the  plaintiff  was  awarded  an  injunction 
to  stay  waste,  and  an  accounting  was  ordered  as  to  the  personal 
property,  with  costs  of  the  action  against  the  defendant.  From 
this  judgment  the  defendant  appeals  to  the  General  Terra. 

A.  D.  Enapp,  for  the  appellant. 
W.  H.  Johnson,  for  the  respondent. 

BOCKES,  J. : 

The  property,  both  real  and  personal,  as  to  which  relief  is  sought 
in  this  action,  came  to  the  defendant  under  the  will  of  her  deceased 
husband,  John  Brainard.  By  that  instrument  the  defendant  took 
an  estate  for  her  own  life  in  the  lands  and  premises,  with  the  right 
also  to  use  the  personal  property,  in  her  due  discretion,  for  any  pur- 
pose and  in  any  reasonable  manner,  and  in  such  use  to  consume  and 
exhaust  the  same  if  necessary  for  her  own  support.  The  remainder  of 
both  the  real  and  personal  property  was,  by  such  will,  given  and 


272  WILLIAMS  v.  PEABODY. 

THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 

devised  to  one  John  Daj'  Wai  worth.  The  latter  died  intestate  leaving 
no  widow  nor  descendant,  but  leaving  a  father,  Gilbert  Walworth, 
him  surviving.  John  D.  Walworth,  the  legatee  and  devisee,  was  the 
nephew  of  the  testator  on  his  mother's  side,  consequently,  under  the 
circumstances  of  survivorship  in  his  case  (which  it  is  here  unneces- 
sary to  detail),  his  father,  Gilbert  Walworth,  took,  under  the  statute 
of  descent,  a  life  interest  or  life  estate  for  his  own  life,  in  the  real 
property,  subject  to  the  defendant's  life  estate  therein  (Morris  v. 
Ward,  36  N.  Y.,  587),  and  he  inherited  from  his  son  an  absolute 
interest  in  the  personal  property,  subject  to  the  defendant's  right 
to  its  use  and  enjoyment  during  her  life,  as  above  stated.  These 
rights  of  property,  so  held  by  Gilbert  Walworth,  as  heir  and 
next  of  kin  of  his  son  John  D.  Walworth,  were  acquired  by  the 
plaintiff  in  this  action  and  were  held  by  him  for  a  considerable 
time  prior  to,  and  until  the  commencement  of  the  suit. 

It  is  not  deemed  necessary  to  state  the  facts  of  the  case  more  in 
detail,  as  there  cannot  be,  and  indeed  is  not,  any  question  raised  in 
regard  to  them;  certainly  not  as  affecting  the  title  of  the  respec- 
tive parties.  We  may  assume,  therefore,  that  the  plaintiff's  rights 
of  property,  both  as  regards  the  real  and  personal  estate,  are  the 
same  as  were  those  of  Gilbert  Walworth  ;  and  that  they  are  correctly 
herein  above  given.  It  is  seen,  therefore,  that  the  estate  of  the 
plaintiff  in  the  real  property  was  a  remainder  for  the  life  of  Gilbert 
Walworth  to  commence  in  possession  on  the  decease  of  the  defend- 
ant. True,  whether  it  would  ever  take  effect  in  possession  was 
nncertain  ;  being  made  to  depend  on  the  fact  whether  Gilbert  Wal- 
worth should  survive  the  defendant.  Nevertheless,  it  was  a  vested 
remainder.  Kent  says,  "  a  vested  remainder  is  a  fixed  interest  to 
take  effect  in  possession  after  a  particular  estate  is  spent.  If  it  be 
uncertain  whether  the  use  or  estate  limited  in  future  shall  ever  vest, 
that  use  or  estate  is  said  to  be  in  contingency.  But  though  it  may 
be  uncertain  whether  a  remainder  will  ever  take  effect  in  possession, 
it  will,  nevertheless,  be  a  vested  remainder  if  the  interest  be  fixed." 
(4  Kent,  202.)  And,  again,  he  says,  "  it  is  the  present  capacity  of 
taking  effect  in  possession,  if  the  possession  were  to  become  vacant, 
and  not  the  certainty  that  the  possession  will  become  vacant  before 
the  estate  limited  in  remainder  determines,  that  distinguishes  a 
vested  from  a  contingent  remainder"  (id.,  203);  and  again,  "it  is 


WILLIAMS  v.  PEABODY.  273 

THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 

not  the  uncertainty  of  enjoyment  in  future,  but  the  uncertainty  of 
the  right  to  that  enjoyment,  which  marks  the  difference  between  a 
vested  and  contingent  interest."  (Id.,  206.)  Now,  here  the  uncer- 
tainty was  as  to  the  enjoyment  in  future,  not  as  to  the  right  of  that 
enjoyment.  The  plaintiffs  right  to  enjoy  the  estate,  on  the  deter- 
mination of  the  intermediate  one,  was  fixed  and  certain.  Conse- 
quently his  estate  was  a  vested  remainder  for  the  life  of  Gilbert  Wai- 
worth,  to  commence  in  possession  on  the  decease  of  the  defendant. 
Against  injury  to  such  interest  by  the  defendant,  who  held  the  inter- 
mediate estate,  the  plaintiff  might  claim  and  should  have  the  pro- 
tec*ion  of  this  court.  While  he  might  not  have  a  right  of  recovery 
at  law  for  damages,  yet  he  could  have  a  remedy  in  equity  by 
injunction  to  stay  waste.  Even  when  there  is  only  a  contingent 
estate,  a  court  of  equity  will  not  permit  waste  to  be  done  to  the 
injury  of  such  estate.  So  an  injunction  will  be  granted  when  the 
aggrieved  party  has  equitable  rights  only.  (2  Story's  Eq.,  §§  913, 
914,  919 ;  Willard's  Eq.  [Potter's  ed.],  139  ;  Woodruff  v.  Cook, 
47  Barb.,  304.)  In  this  case  no  right  of  recovery  for  damages  waa 
shown,  and  none  were  allowed.  So  the  claim  for  judgment  of 
forfeiture  and  eviction  was  not  sustained,  as  such  judgment  could 
only  be  given  when  the  injury  to  the  estate  in  reversion  or  remain- 
der should  be  adjudged  to  be  equal  to  the  value  of  the  tenant's 
estate  or  unexpired  term,  or  to  have  been  done  in  malice.  (Code, 
§  452.)  This  was  not  here  so  adjudged.  But  the  plaintiff  had 
rights  which  the  court,  in  the  exercise  of  its  equitable  powers, 
could  protect.  The  defendant  was  shown  to  have  suffered  per- 
missive waste,  as  the  learned  judge  who  tried  the  cause  has  found, 
in  "  utter  defiance  of,  and  disregard  for,  the  plaintiff's  rights."  He 
also  finds  that  the  plaintiff's  interest  in  the  real  estate  is  exposed 
to  loss  and  injury,  and  is  liable  to  be  seriously  affected  by  the 
improper  manner  in  which  the  defendant,  just  previous  to  the  com- 
mencement of  the  action,  permitted  the  same  to  be  wasted  and 
injured.  These  findings  are  not  without  sufficient  support  under 
the  proof.  The  injunction  was,  therefore,  properly  awarded. 

As  regards  the  personal  property,  no  other  judgment  than  for 
an  accounting  as  to  items  was  directed.     This  was  proper,  inas- 
much as  the  plaintiff  had  a  right  to  know  of  what  it  consisted. 
No  inventory  of  the  property  had  been  made,  and  the  defendant 
HUN— VOL.  VIII.        35 


274  WILLIAMS  v.  PEABOUY. 

THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 

used  it  for  her  own  purposes,  denying  all  right  thereto  in  any  othei 
party.  The  action  is  not  for  an  accounting  by  the  defendant  as 
executrix,  but  to  compel  a  disclosure  of  the  nature  and  kind  of 
property  received  by  her,  with  a  view  to  its  due  preservation  and 
ultimate  application  according  to  the  terms  of  the  will.  This  the 
plaintiff  may  demand,  and  to  such  relief  he  is  entitled,  hold- 
ing as  he  does  the  position  and  rights  of  residuary  legatee. 
It  is  but  right  and  equitable  that  the  defendant,  who  has 
received  the  property,  should  discover  and  set  it  forth,  and 
refusing  so  to  do,  the  court  of  equity  may  compel  it.  True, 
the  defendant  may  use  the  property  for  her  own  proper  and  neces- 
sary purposes,  and  may,  if  required  for  her  necessary  support* 
wholly  consume  and  exhaust  it ;  but  the  plaintiff  is  entitled  to  have 
whatever  shall  remain  of  it  on  her  decease.  The  judgment  here 
ordered,  to  the  effect  that  the  defendant  should  render  an  account 
of  the  items  of  the  property,  was  therefore  just  and  proper,  with  a 
riew  to  protect  the  plaintiff  in  his  rights  relating  thereto. 

The  granting  or  withholding  of  costs  to  the  respective  parties 
rested  in  the  discretion  of  the  court,  as  the  cause  was  tried  and  is 
now  argued  before  us  as  an  equity  case. 

The  plaintiff,  it  seems,  failed  on  the  most  important  claims, 
charges  and  demands  put  forward  in  the  complaint,  and  it  may  be 
added  also  that  the  defendant  put  herself  on  untenable  grounds  of 
defense  in  several  important  particulars.  Perhaps  a  very  just  dis- 
position of  this  question  would  have  been  the  withholding  of  costs 
from  each  party  as  against  the  other.  But  the  learned  judge  in  the 
exercise  of  his  discretion  adjudged  otherwise,  and  doubtless  based 
his  conclusion  on  what  he  deemed  the  wrongful  and  unjustifiable 
course  pursued  by  the  defendant  in  her  use  of  the  property.  He 
has  characterized  her  conduct  with  reference  to  the  property  as 
willful  and  in  utter  disregard  of  the  plaintiff 's  rights.  It  cannot 
be  maintained,  I  think,  nnder  the  proof  and  findings  of  the  learned 
judge,  that  his  conclusion  was  erroneous  as  an  improper  exercise 
of,  or  abuse  of  discretion. 

The  judgment  appealed  from  must  be  affirmed,  with  sosts. 

LEARNED.  P.  J.,  and  BOABDMAN,  J.,  concurred. 
Judgment  affirmed,  with  costs. 


PEOPLE  EX  KEL.  VAN  TASSEL  v.  SUPERVISORS.      275 
THIRD  DEPARTMENT,  SEPTEMBER  TEBM,  1876. 

THE  PEOPLE  EX  BEL.  WM.  H.  VAN  TASSEL,  RESPONDENT. 
v.  THE  BOARD  OF  SUPERVISORS  OF  THE  COUNTY 
OF  COLUMBIA,  APPELLANT. 

Sheriffs —  GJuipter  495  of  1847  — fees  of  officers  in  criminal  proceedings  under — by 
whom  audited —  Common  council  of  Hudson — power  of  to  audit  claims  —  §  97, 
chapter  468  of  1872. 

The  term  "  criminal  proceedings,"  as  useu  in  chapter  495  of  1847,  providing  foi 
the  payment,  by  the  several  towns  and  cities,  of  all  fees  and  accounts  of  magis 
trates  and  other  officers  for  criminal  proceedings,  instituted  for  certain  offenses 
committed  therein,  embraces  all  necessary  and  legal  actions  by  magistrates  and 
ministerial  officers  having  in  view  the  punishment  of  public  offenders  and 
violators  of  public  rights  and  duties,  as  distinguished  from  civil  injuries. 

Where  the  sheriff  of  the  county  of  Columbia  rendered  services  in  receiving,  dis- 
charging and  boarding  prisoners  committed  to  jail  by  the  police  justice  of  the 
city  of  Hudson  for  offenses  commuted  therein,  none  of  which  were  felonies, 
held,  that  even  if  some  of  the  cases  in  which  they  were  rendered  did  not  fall 
within  the  strict  definition  of  "  criminal  proceedings,"  yet  as  tht-y  were  all  ren- 
dered in  other  than  civil  proceedings,  and  in  the  line  of  his  official  duties  he 
was  entitled  to  compensation  therefor. 

A  just  allowance  hi  such  cases  would  be  the  amount  fixed  by  statute  for  similar 
services  in  other  proceedings. 

Under  section  97  of  chapter  468  of  1872,  providing  that  the  common  council  of 
the  city  of  Hudson  shall  be  "  the  board  of  auditors  to  examine  the  accounts  of 
officers  of  the  city,  with  the  same  powers  and  shall  proceed  in  the  same  way 
as  is  prescribed  by  law  for  the  board  of  town  auditors  in  towns,"  the  com- 
mon council  is  not  restricted  to  the  examination  and  audit  of  the  accounts  of 
"officers  "  of  the  city,  but  it  is  vested  with  all  the  powers  possessed  by  the 
board  of  town  auditors  of  towns,  and  it  is  its  duty  to  audit  bills  presented  by 
the  sheriff  of  Columbia  county  for  services  chargeable  under  the  act  of  1847, 
upon  the  said  city. 

APPEAL  from  an  order  of  the  Special  Term,  granting  a  writ  of 
peremptory  mandamus  requiring  the  board  of  supervisors  of  Colum- 
bia county  to  allow  a  claim  presented  by  the  relator,  as  sheriff  of 
said  county.  His  claim  of  $2,548.75  was  made  up  of  items  for  fees 
in  receiving  and  discharging,  and  for  board  of  prisoners  committed 
to  jail  by  the  police  justice  of  the  city  of  Hudson  in  cases  not  felo- 
nies, but  principally  in  cases  of  intoxication  in  public  places ;  of 
vagrancy  and  of  violations  of  ordinances  of  the  common  council  of 
the  city.  All  the  charges  related  to  proceedings  in  which  the 
offenses  punished  or  investigated  occurred  in  the  city  of  Hudson. 


27(>      PEOPLE  EX  KEL.  VAN  TASSEL  v.  SUPERVISORS. 
Th i HI>  DEPARTMENT,  SEPTEMBER  TERM,  1876. 

The  board  of  supervisors  refused  to  audit  or  assess  the  claim,  or 
any  part  of  it,  on  the  ground  that  the  items  thereof  were  not  county 
charges,  and  had  not  been  audited  and  allowed  by  the  "  board  of 
auditors  "  of  the  city  of  Hudson  ;  and  that  it  was  made  unlawful 
for  their  body  "  to  audit  or  allow  any  account  chargeable  to  said 
city."  The  Special  Term  held  their  refusal  to  audit  and  to  assess 
the  claim  erroneous  and  improper,  and  granted  the  writ  of  manda- 
mus as  demanded.  From  the  order  granting  such  writ  an  appeal 
was  taken  to  the  General  Term. 

JR.  E.  Andrews,  for  the  appellant. 
C.  P.  Collier,  for  the  respondents. 

BOCKES.  J. : 

We  do  not  understand  that  the  claim  of  the  relator  includes  any 
illegal  or  improper  charge.  The  items  of  which  it  is  composed  are 
such  as  the  law  authorizes,  and  the  bill  was  duly  verified.  The 
question  is,  by  what  public  body  should  it  be  audited  an*d  allowed, 
and  how  may  payment  be  enforced  ?  Are  the  items  subjects  of 
town  or  county  charges  ?  In  so  far  as  the  claim  of  the  relator  is 
made  up  of  legal  fees  and  just  matters  of  account  "for  criminal 
proceedings,"  the  case  would  seem  to  be  covered,  to  a  very  consid- 
erable extent,  if  not  entirely,  by  the  act  of  1845,  amended  in  1847. 
That  act  was  enacted,  in  part,  to  compel  the  several  towns  and 
cities  to  pay  the  expenses  incurred  in  cases  where  the  offenses 
were  committed  therein  respectively,  and  is  as  follows :  "All  fees 
and  accounts  of  magistrates  and  other  officers,  for  criminal  proceed- 
ings *  *  *  shall  be  paid  by  the  several  towns  or  cities  wherein 
the  offense  shall  have  been  committed,  and  all  accounts  rendered 
for  such  proceedings  shall  state  where  such  offense  was  committed, 
and  the  board  of  supervisors  shall  assess  such  fees  and  accounts 
upon  the  several  towns  or  cities  designated  by  such  accounts." 

The  exceptions  to  this  general  expression,  contained  in  this  act, 
need  not  be  here  noticed,  inasmuch  as  none  of  the  items  of  charge 
in  the  relator's  bill  come  within  them.  Now,  it  will  be  seen,  on 
examination  of  the  relator's  account,  that  the  charges  are  princi- 
pally for  fees  and  accounts  incurred  in  criminal  proceedings  within 


PEOPLE  EX  EEL.  VAN  TASSEL  v.  SUPERVISORa      277 
THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 

the  plain  intent  of  that  statute.  The  language  employed  should  be 
accepted  in  its  more  liberal  and  extended  signification,  with  a  view 
to  carry  out  the  manifest  purpose  which  the  legislature  had  in 
view,  to  wit:  to  charge  upon  towns  and  cities  respectively  the 
expenses  incurred  therein,  in  proceedings  to  enforce  laws  relating  to 
criminal  or  quasi  criminal  matters.  So,  "  criminal  proceedings  " 
were  evidently  here  intended  to  embrace  all  necessary  and  legal 
actions  by  magistrates  and  ministerial  officers,  having  in  view  the 
punishment  of  public  offenders  and  violators  of  public  rights  and 
duties  as  distinguished  from  civil  injuries.  In  the  popular  mind 
each  persons  are  criminals,  and  proceedings  against  them  on  behalf 
of  the  people  with  a  view  to  their  punishment  are  deemed  "  crimi- 
nal proceedings."  Perhaps  some  few  of  the  items  of  charge  in  the 
relator's  bill  may  not  fall  strictly  within  the  letter  of  the  law,  giving 
the  terms  "  crime"  and  "criminal"  their  strictest  legal  definition, 
but  all  of  them  were  incurred  in  other  than  civil  proceedings,  and 
were  proper  subjects  of  compensation,  as  they  were  necessarily 
incurred  by  the  relator  in  the  line  of  his  official  duties.  We  fuily 
agree  with  the  learned  judge  in  his  remarks  at  Special  Term,  that 
there  is  no  justice  in  saying  that  the  relator  should  not  be  paid  for 
aervices  which,  as  a  public  officer,  he  was  bound  to  perform,  and 
that  under  the  general  power  given  to  auditors,  a  board  of  audit 
might  allow  a  reasonable  compensation  for  such  services,  and 
that  a  sound  discretion  might  indicate  as  a  just  allowance  in 
such  cases,  what  was  fixed  by  statute  for  similar  services  in 
other  instances.  These  remarks  have  application  to  but  few  of 
the  items,  for  most  of  them  pertain  unmistakably  to  criminal  pro- 
ceedings, and  all  are  believed  to  fall  within  the  provision  of  the 
act  above  cited.  So  it  would  seem  that  the  items  of  charge  in  the 
relator's  bill  were  proper  subjects  of  audit  under  the  act  of  1845, 
amended  in  1847 ;  and  if  so,  then  according  to  that  act  the  bill  was 
legally  assessable  upon  the  city  of  Hudson.  The  act  declares  that 
the  fees  and  accounts,  as  therein  specified,  shall  be  paid  by,  and 
assessed  upon  the  several  towns  or  cities  wherein  the  offense  shall 
have  been  committed.  But  the  bill  for  such  fees  and  accounts 
was  first  to  be  audited  and  allowed  ;  and  the  question  now  arises, 
on  whom  did  this  duty  devolve?  If  sound  in  the  conclusion 
above  reached,  the  relator's  claim  was  against  the  city  of  Hud- 


278      PEOPLE  KX  HKL.  VAN  TASSEL  v.  SUPERVISORS. 
THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 

son.  When  audited  it  would  be  a  charge  upon  that  city,  which 
by  its  charter  was  to  be  regarded  and  treated  as  one  of  the 
towns  of  Columbia  county.  Now,  on  what  officers  or  public 
body  did  the  law  impose  this  duty,  that  is,  the  duty  of  audit- 
ing bills  against  the  city,  regarded  for  this  purpose  as  one  ot 
the  towns  of  Columbia  county  ?  The  general  statutes  of  the 
State  provide  for  a  board  of  town  auditors  "  for  the  purpose  of 
auditing  and  allowing  the  accounts  of  all  charges  and  claim* 
payable  by  their  respective  towns."  (1  R.  S.  [6th  ed.],  845,  §  65.) 
The  board  is  required  to  meet  annually  for  the  purpose  of  audit- 
ing and  allowing  such  accounts  (Id.,  §  66),  and  to  certify  dupli- 
cates of  the  audited  bills,  one  to  be  delivered  to  the  supervisor 
of  the  town,  to  be  by  him  laid  before  the  board  of  supervisors  of 
his  county  at  their  annual  meeting  (Id.,  §  67) ;  and  that  board  is 
required  to  cause  the  sum  so  audited,  allowed  and  certified  "  to  be 
levied  and  raised  upon  said  town  "  (Id.,  §  68),  and  the  supervisors 
have  no  discretion  but  to  direct  the  amount  to  be  so  levied  and 
raised.  (The  People  v.  Supervisors  of  Queens,  1  Hill,  195-199.) 
By  the  city  charter  (§  97),  the  common  council  of  the  city  of 
Hudson  is  made  the  board  of  auditors  "  to  examine  the  accounts 
of  officers  of  the  city,  with  the  same  powers,  and  shall  proceed  in 
the  same  way,  as  is  prescribed  by  law  for  the  board  of  town 
auditors  in  towns ;"  and  further  it  is  provided  that  "  it  shall 
not  be  lawful  for  the  board  of  supervisors  of  the  county  of 
Columbia  to  audit  or  allow  any  account  chargeable  to  said  city." 
Here  then  was  created  a  board  of  audit  for  the  city,  with 
the  same  powers,  and  it  was  to  proceed  in  the  same  way,  as 
prescribed  by  law  for  the  board  of  town  auditors  in  towns. 
Thus  this  board  superseded  and  took  the  place  of  a  town  board  as 
to  all  accounts  against  the  city,  and  hence  it  devolved  on  it  to  audit 
the  relator's  account,  which,  as  we  have  seen,  constituted  a  claim 
against  the  city.  This  would  follow  from  the  provision  of  the 
charter,  which  vested  the  common  conned,  as  a  board  of  audit, 
with  the  same  powers  and  duties  devolvin_,  >y  law  upon  the  board 
of  town  auditors,  to  wit,  the  auditing  and  allowing  "  the  accounts 
of  all  charges  and  claims  payable  by  their  respective  towns."  It 
is  suggested  that  section  97  of  the  charter  above  alluded  to 
confers  the  right  of  audit  upon  the  common  council,  only  as  to 


PEOPLE  EX  BEL.  VAN  TASSEL  v.  SUPERVISORS.      279 
THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 

"  the  accounts  of  officers  of  the  city"  and  that  the  sheriff  is  not 
such  officer.  But  waiving  what  might  perhaps  be  urged,  that  in 
giving  fair  and  just  effect  to  the  intent  of  the  legislature,  the 
sheriff,  as  regards  these  matters  of  town  (or  city)  charges,  should 
be  deemed  to  be  an  officer  of  the  city,  it  is  manifest  that  the  city 
board  of  auditors  were  vested  with  the  full  powers  of  town 
auditors  in  their  respective  towns.  This  board  was  to  examine  the 
accounts  of  officers  of  the  city,  some  of  whom  would  be  other 
than  those  of  towns,  with  the  same  powers,  etc.,  prescribed  by  law 
for  town  auditors:  that  is,  that  the  common  council,  as  a  board  of 
auditors,  should  have  the  power  to  examine  the  accounts  of  officers 
of  the  city,  and  should  exercise  the  same  powers  "prescribed  by  law 
for  the  board  of  town,  auditors  in  towns"  This  construction  and 
interpretation  of  the  law  seems  reasonable,  in  view  of  its  manifest 
purpose  and  of  the  several  sections  relating  to  the  subject.  The 
claim  should  be  audited  and  allowed  before  the  amount  should  be 
levied  and  assessed.  The  right  to  audit  or  allow  it  was  taken  from 
the  board  of  supervisors  by  explicit  enactment.  There  was  no 
other  body  than  the  city  board  of  auditors  having  authority  to 
examine  and  allow  it,  and  it  is  believed  that  such  board  has  the 
requisite  authority  under  the  city  charter,  which,  by  fair  intend- 
ment,  if  not  in  express  terms,  vests  the  common  council,  as  a  board 
of  auditors,  with  the  same  powers  prescribed  by  law  for  the  board 
of  town  auditors  in  towns.  If  so,  then  it  devolves  upon  such  board 
to  audit  and  allow  "  the  accounts  of  all  charges  and  claims  pay- 
able" by  the  city.  (Sec.  65,  supra.)  It  is  suggested  that  such 
construction  will  necessitate  the  making  out  of  bills  by  the  sheriff, 
against  the  county  and  the  various  towns  as  well.  But  there  is 
neither  difficulty  or  hardship  in  this,  inasmuch  as  that  officer  has 
the  data  at  hand  to  answer  this  requirement. 

If  the  conclusions  above  reached  be  sound,  the  order  of  the 
Special  Term  granting  the  writ  of  mandamus  against  the  board  of 
supervisors  was  improperly  granted.  The  relator's  claim  had  not 
been  audited  and  certified  to  that  body  as  required  by  law.  That 
body  had  no  right  or  authority  to  audit  or  allow  the  claim  ;  nor  had 
it  right  or  authority  to  levy  and  raise  the  amount,  until  it  wa§ 
legally  audited  and  allowed. 

The  order  appealed  from  must  be  reversed,  and  the  motion  for 


280  LILLIS  v.  O'CONNER. 


THIBO  DEPARTMENT,  SKPTEMBBR  TERM,  1876. 

the  writ  denied;  bat  the  questions  considered  being  of  a  public 
character,  new  and  somewhat  intricate,  there  should  be  no  costs 
allowed  to  either  party. 

The  order  appealed  from  reversed,  and  the  motion  for  a  manda- 
mus denied,  without  costs. 

LEARNED,  P.  J .,  and  BOARDMAN,  J.,  concurred. 
Order  reversed  and  motion  for  mandamus  denied. 


PATRICK  LILLIS,  RESPONDENT,  v.  CORNELIUS  O'CONNER, 

APPELLANT. 

Action  for  assault  and  battery — Code,  §304 —  costs  —  when  title  to  real  property 

involved. 

In  this  action  for  an  assault  and  battery,  the  defense  was  :  (1)  general  denial,  (2) 
son  assault  demesne,  (3)  justification  in  defense  of  defendant's  real  property. 
The  plaintiff  recovered  a  verdict  of  six  cents,  and  having  obtained  a  certificate 
from  the  county  judge  that  the  title  to  real  property  was  put  in  issue  by  the 
pleadings  and  came  in  question  upon  the  trial,  he  taxed  full  costs.  Held,  that 
this  was  proper,  and  that  a  motion  to  strike  from  the  judgment  all  costs  in 
excess  of  six  cents  was  properly  denied. 

Dinehart  v.  Wells  (2  Barb.,  432)  followed. 

Such  certificate  is  conclusive  upon  the  taxing  officer,  to  show  that  the  title  to  land 
came  in  question  upon  the  trial. 

APPEAL  from  an  order  of  the  County  Court  of  Cortland  county, 
denying  a  motion  to  strike  from  the  record  the  plaintiff's  costs, 
except  six  cents,  the  amount  of  the  verdict. 

The  action  was  assault  and  battery,  brought  in  the  County  Court 
of  Cortland  county.  The  defense  interposed  by  the  answer  was : 
(1)  general  denial;  (2)  son  assault  demesne;  (3)  justification  in 
defense  of  defendant's  possession  of  his  real  property.  On  the  trial 
the  plaintiff  had  a  verdict  of  six  cents.  The  plaintiff  obtained  a 
certificate,  signed  by  the  county  judge,  that  the  title  to  real  prop- 
erty was  raised  and  put  in  issue  by  the  pleadings,  and  came  in 
question  on  the  trial,  and  thereupon  taxed  full  costs  and  entered 
judgment  therefor  in  his  favor.  The  defendant  then  moved,  on  an 


LILLIS  ».  O'CONNER.  281 

THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 

order  to  show  cause,  for  a  readjustment  of  the  costs,  and  that  the 
same  be  stricken  from  the  judgment  except  for  the  sum  of  six 
cents.  The  order  to  show  cause  was  discharged,  and  the  motion 
for  a  readjustment  of  the  costs  was  denied.  Thereupon  the  defend- 
ant appealed  to  this  court. 

Waters  &  Rnox,  for  the  appellant. 
Shankland  <&  ShariJdcmd,  for  the  respondent. 

BOCKES,  J. : 

The  decision  in  Dinehart  v.  Wells  (2  Barb.,  432)  seems  entirely 
conclusive  of  the  question  presented  on  this  appeal.  According  to 
that  decision  the  provision  of  the  Code  which  declares  that  in  an 
action  for  assault  and  battery,  if  the  plaintiff  recover  less  than  fifty 
dollars  damages,  he  shall  recover  no  more  costs  than  damages,  does 
not  nullify  or  affect  the  prior  provision  of  the  same  section  (304), 
which  provides  that  costs  shall  be  allowed  of  course  to  the  plain- 
tiff when  a  claim  of  title  to  real  property  arises  on  the  pleadings, 
or  is  certified  by  the  court  to  have  come  in  question  at  the 
trial.  Trne,  the  language  of  the  Code  is  not  precisely  the  same 
as  that  of  the  statutes  under  consideration  in  Dinehart  v. 
Wells,  but  the  intent  and  meaning  were  the  same.  The  dif- 
ference in  the  phraseology  is  but  formal,  and  admits  of  no 
construction  dissimilar  in  the  one  case  from  the  other.  That 
decision,  being  a  General  Term  decision,  should  be  adhered  to  until 
overruled  in  the  appellate  court.  It  is  suggested  that  there  is  an 
important  dissimilarity  between  the  case  cited  and  the  one  in  hand, 
as  regards  the  pleadings.  In  the  case  cited  the  action,  like  that 
here  before  us,  was  for  assault  and  battery.  The  answer  was  the 
same  in  both  cases,  to  wit :  (1)  general  denial ;  (2)  son  assault 
demesne;  (3)  moliter  manus  imposuit  in  defense  of  defendant's 
possession.  In  the  case  cited  there  was  a  reply  to  the  third  defense, 
alleging  the  locus  in  quo  to  be  a  public  highway,  and  that  the 
plaintiff  was  lawfully  there  when  the  injury  complained  of  was 
inflicted.  To  this  the  defendant  rejoined,  denying  that  the  locus 
in  quo  was  a  highway.  Thus  an  issue  was  raised  upon  the  third 
defense,  and  the  court  held  that  on  such  issne  the  title  to  land 
HUN— VOL.  VIII.  38 


282  LILLIS  v.  O'CONNER. 

THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 

came  in  question  on  the  pleadings.  This  line  of  pleading  was 
admissible  when  the  record  in  that  case  was  made  up  by  the  parties, 
but  now,  under  the  Code,  no  reply  to  the  defendant's  answer  was 
admissible  (Code,  §  153),  and  the  third  defense  was  to  be  deemed 
controverted  by  the  adverse  party  as  upon  denial  or  avoidance. 
(Sec.  168.)  The  two  cases  are  therefore  precisely  alike  as  regards 
the  pleading.  Thus,  in  the  case  in  hand,  according  to  the  decision 
in  Dinehart  v.  Wells,  and  in  legal  logic,  a  claim  of  title  to  real 
property  was  raised  on  the  pleadings.  The  defendant  tendered 
the  issue  by  his  answer;  a  reply  was  inadmissible;  but  the  new 
matter  interposed  as  a  defense  was  by  the  Code  to  be  deemed  con- 
troverted, "as  upon  a  direct  denial  or  avoidance."  (Sec.  168.)  It 
seems  also  that  the  title  to  real  property  came  in  question  on  the 
trial.  The  judge  so  certified ;  and  the  papers  before  us  show  that 
evidence  was  given  bearing  on  the  question  of  title  ;  and  the  judge 
charged  the  jury  on  the  subject.  A  point  is  made  that  the  certifi- 
cate is  by  the  judge  and  not  by  the  court,  but  it  does  not  appear, 
as  it  should  to  make  this  objection  available,  that  it  was  raised 
before  the  taxing  officer ;  and  besides,  for  aught  that  appears,  the 
certificate  was  made  by  the  court.  The  county  judge  is  the  court 
when  in  session,  and  that  court  is  always  open  for  the  transaction 
of  any  business,  for  which  no  notice  is  required  to  be  given  to  the 
opposite  party.  (Sec.  31.)  It  should  be  added  here,  perhaps,  that 
the  certificate  was  conclusive  upon  the  taxing  officer,  that  the  title 
to  land  came  in  question  on  the  trial.  (Mumford  v.  Withey,  1 
Wend.,  279 ;  Barney  v.  Keith,  6  Wend.,  555 ;  Burhans  v.  Tibbits, 
7  How.,  75,  per  WRIGHT,  J. ;  Niles  v.  Lindsley,  1  Duer,  610 ; 
Utter  v.  Gifford,  25  How.,  297,  per  HOGEBOOM,  J.)  If  improperly 
granted  the  certificate  may  be  set  aside  on  motion  for  that  purpose. 
(Barney  v.  Keith,  (tn/pra.)  The  order  appealed  from  must  be 
affirmed,  with  ten  dollars  costs  and  disbursements. 

LEAENED,  P.  J.,  and  BOARDMAN,  J.,  concurred. 

Order  affirmed,  with  ten  dollars  costs  and  disbursement*. 


RECORD  v.  MESSENGER.  283 

THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 


RUDOLPH  US  RECORD,  AS  OVEBBEER  OF  THE  POOB  OF  THE 
TOWN  OF  SMYRNA,  RESPONDENT,  v.  HANSON  K.  MESSENGER, 
APPELLANT. 

Chapter  820  of  1873  —  Prosecution  for  violation  of  excise  law  ly  third  person  —  dts- 
contmuance  of  action  by  overseer  of  the  poor  —  costs. 

Where  an  action  is  brought  to  recover  a  penalty  for  a  violation  of  the  excise 
law,  under  chapter  820  of  1873,  authorizing  any  person  to  prosecute  there- 
for in  the  name  of  the  overseer  of  the  poor,  in  case  the  proper  persons  refuse 
for  ten  days  to  bring  such  action,  the  overseer  of  the  poor,  in  whose  name  the 
action  is  Drought,  has  no  power  to  consent  to  its  discontinuauce  without  the 
consent  of  the  persons  by  whom  it  was  commenced. 

e,  whether  the  persons  instituting  the  action  would  be  liable  for  the  costs. 


APPEAL  from  an  order  denying  a  motion  to  discontinue  this 
action,  in  pursuance  of  a  stipulation  made  by  the  plaintiff. 

D.  L.  Aikyns,  for  the  appellant.  The  person  prosecuting  in 
the  name  of  the  overseer  of  the  poor  has  no  interest  in  the  action. 
He  receives  no  part  of  the  penalty  or  costs.  (Laws  1857,  chap.  628, 
§  22  ;  as  amended,  Laws  1873,  chap.  820.)  A  third  person  prosecut- 
ing in  the  name  of  the  overseer,  does  so  as  his  agent.  The  overseer 
is  still  plaintiff,  and  is  responsible  for  costs.  He  can  release  or  dis- 
charge a  judgment  recovered  in  his  name  by  such  third  person 
without  payment.  The  power  to  discharge  the  judgment  must 
necessarily  include  the  power  in  the  same  person  to  discharge  the 
action  by  which  judgment  might  be  obtained.  (Smith  v.  Wright, 
13  Barb.,  414  ;  Hears  v.  Boston,  etc.,  5  Gray  [Mass.],  371  ;  Regina 
v.  Allen,  1  Ellis,  B.  &  S.,  850  ;  Wilkinson  v.  Lvndo,  7  Mee.  &  W., 
87  ;  Gibson  v.  Winter,  5  B.  &  Ad.,  96  ;  Barlow  v.  Pease,  5  Hun,  564.) 

D.  D.  Niles,  for  the  respondent. 

Per  Cwiam: 

This  is  an  appeal  from  an  order  denying  the  defendant's  motion 
to  discontinue  the  action.  The  motion  was  made  when  the  case 
was  moved  for  trial  at  the  Circuit,  on  the  ground  that  it  had  been 
discontinued  by  stipulation  of  the  plaintiff. 


284  RECORD  t>.  MESSENGER. 

THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 

The  action  was  brought  to  recover  three  penalties  alleged  to  have 
been  incurred  by  the  defendant  for  selling  strong  and  spirituous 
liquors  in  violation  of  the  excise  law.  It  was  brought  originally  in 
the  name  of  Mr.  Chapman  as  overseer  of  the  poor,  and  the  present 
plaintiff  was  substituted  in  the  place  of  the  former  as  his  successor 
in  office.  Thereafter  the  plaintiff  in  person  gave  the  defendant  a 
stipulation  c discontinuing  the  action  without  costs  to  either  party. 
Notwithstanding  this  stipulation,  the  attorney  of  record  for  the 
plaintiff  placed  the  case  on  the  Circuit  calendar,  and,  when  it  was 
reached,  moved  its  trial.  Thereupon  the  defendant  applied  to  the 
court,  on  the  stipulation,  for  an  order  of  discontinuance.  The 
motion  was  denied,  and  an  order  was  entered  to  that  effect.  This 
appeal  is  from  such  order.  It  was  admitted,  as  appears  from  the 
recitals  in  the  order,  that  the  overseer  of  the  poor  neglected  and 
refused  to  prosecute  the  defendant  for  the  penalties,  notwithstand- 
ing duty  called  upon  him  to  do  so,  according  to  the  provisions  of 
the  act  of  1873  ;  and  that  James  P.  Knowles  and  Mott  C.  Dixon, 
the  persons  who  made  the  complaint  and  request,  thereupon  com- 
menced the  action  in  the  name  of  the  overseer,  under  the  provision 
of  the  law  providing  that  in  case  the  party  whose  duty  it  was  to 
prosecute  for  the  penalties,  should,  for  a  period  of  ten  days,  neglect 
or  refuse  so  to  do,  anj  other  person  might  prosecute  therefor  in 
the  name  of  the  overseer ;  and  it  was  insisted,  therefore,  that  the 
action  was  their  action  and  could  not  be  discontinued  by  the  over- 
seer, who  was  merely  nominal  plaintiff,  without  their  consent.  The 
court,  it  seems,  maintained  this  view ;  and,  as  we  think,  correctly. 
The  right  to  prosecute  the  action  was  given,  by  the  express  lan- 
guage of  the  law,  to  others  than  the  overseer,  in  case  of  his  neglect 
and  refusal  so  to  do  for  ten  days  after  request  and  due  presentation 
of  proof  that  the  party  had  incurred  the  penalty  imposed  by  the 
act.  The  right  to  prosecute  the  action  was  more  than  a  mere  bar- 
ren right  to  commence  it  to  be  immediately  discontinued  by  another, 
without  consent  of  the  party  authorized  to  prosecute.  The  right  to 
prosecute  was  a  right  to  maintain  the  action  —  a  right  to  proceed 
with  it  to  trial  and  judgment.  Otherwise  the  right  to  prosecute  waa 
impotent  and  valueless.  The  manifest  object  of  the  provision  waa 
to  confer  the  privilege  of  enforcing  the  law  on  other  parties, 
when  the  officer  in  whose  name  the  action  should  be  brought 


RECORD  v.  MESSENGER.  285 

THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 

neglected  and  refused  to  perform  his  duty.  This  object  would  be 
completely  frustrated  if  the  officer,  in  such  case,  may  stay  or  dis- 
continue the  proceedings  at  pleasure.  If  he  may  do  this,  there  ia 
no  right  to  prosecute  against  his  will,  yet  this  right  was  plainly 
intended  to  be  conferred,  and  in  the  language  of  the  law  was  con- 
ferred. It  is  only  under  this  construction  that  the  act  and  its 
manifest  intent,  can  be  made  effective.  It  seems,  therefore,  that  as 
regards  the  right  to  prosecute  the  action,  it  should  be  deemed  the 
action  of  Knowles  and  Dixon.  They  had  acquired  the  right  to 
prosecute  it  in  the  name  of  the  overseer.  We  are  not  here  called 
upon  to  decide,  whether  they  would  be  liable  to  the  defendant  for 
his  costs  in  case  of  their  failure  to  maintain  the  action.  Doubt- 
less, costs  would,  by  the  record  in  that  case,  go  against  the  officer 
as  such,  and  it  may  be  a  question  perhaps,  whether,  inasmuch  as 
the  law  provides  for  the  prosecution  of  this  action  by  persons  other 
than  the  overseers,  in  the  name  of  the  latter,  the  same  rule  would 
not  apply  as  in  the  case  of  an  action  prosecuted  by  the  officer 
himself.  In  case  of  a  prosecution  by  the  officer  on  his  own  voli- 
tion he  may  doubtless  control  it,  and  may  even  discharge  the 
judgment  when  obtained.  Still  the  right  to  discharge  a  judgment 
in  that  case  without  payment  and  in  fraud  of  the  rights  of  the 
people  may  well  be  doubted.  But  this  question  is  not  before  us 
on  this  appeal.  Here  the  right  of  the  attorney  further  to  prose- 
cute the  action  is  challenged,  on  the  ground  that  he  is  without 
authority  so  to  do  from  the  plaintiff  who  has  assumed  to  dismiss 
the  case.  He  answers  that  the  action  is  not  the  action  of  the 
plaintiff  on  the  record,  and  that  it  rests  with  another,  to  whom 
the  law  has  committed  its  prosecution.  This  seems  a  perfect 
answer,  as  it  fully  meets  the  case  made  by  the  defendant  as  the 
foundation  of  his  motion,  and  this  view  seems  to  have  support  in 
Barlvw  et  al.,  overseer,  v.  Pease  (12  N.  Y.  S.  C.  R.  [5  Hun],  564). 
The  order  appealed  from  should  be  affirmed,  with  ten  dollars 
ooBts  and  disbursements. 

Present  —  LEARNED,  P.  J.,  BOCKES  and  BOARDMAN,  JJ. 
Order  affirmed,  with  ten  dollars  costs  and  printing. 


286  PECK  v.  N.  Y.  C.  &  H.  R.  R.  R.  CO. 

THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1878. 

JOHN  M.  PECK,  RESPONDENT,  v.  THE   NEW  YORK  CEN- 
TRAL AND  HUDSON  RIVER  RAILROAD  COMPANY, 

APPELLANT. 

WmpLoyme  nt  of  brakeman  —  scope  of —  Excessive  damages — verdict  of  jury — when 

not  set  aside. 

A  brakeman,  put  in  charge  of  railway  cars  with  a  view  to  securing  the  proper 
and  orderly  seating  of  passengers,  forcibly  ejected  the  plaintiff,  who  disobeyed 
his  direction.  Held,  that  in  so  doing  the  brakeman  must  be  deemed  to  have 
acted  within  the  scope  of  his  employment,  and  that  the  company  was  liable  in 
case  he  used  excessive  and  unnecesssary  force. 

Upon  the  former  trial  plaintiff  recovered  a  verdict  for  $5,000,  which  was  set  aside 
by  the  General  Term,  on  the  ground  that  the  damages  awarded  were 
excessive.  Upon  the  second  trial  a  verdict  was  recovered  of  $4,000.  Held,  that 
this  second  verdict,  rendered  upon  substantially  the  same  facts  as  were  pre- 
sented to  the  first  jury,  must  be  accepted  as  final  and  conclusive.* 

MOTION  for  a  uew  trial  upon  exceptions  ordered  to  be  heard  in 
the  first  instance  at  the  General  Term,  after  a  verdict  in  favor  of 
the  plaintiff,  and  appeal  from  an  order  denying  a  motion  for  a  new 
trial,  made  upon  the  minutes  of  the  justice  before  whom  the  action 
was  tried. 

The  action  was  brought  to  recover  damages  alleged  to  have  been 
sustained  by  the  plaintiff,  in  consequence  of  his  having  been  forci- 
bly removed  from  one  of  defendant's  cars.  Upon  the  first  trial 
the  plaintiff  had  a  verdict  for  $5,000.  Upon  appeal  to  the  Gen- 
eral Term,  the  verdict  was  set  aside,  on  the  ground  that  the  dam- 
ages awarded  were  excessive,  the  case  being  reported  in  UN.  Y. 
8.  C.  R.  (4  Hun),  236.  Upon  the  second  trial  the  jury  ren- 
dered a  verdict  in  his  favor  for  $4,000.  A  motion  to  set  aside  this 
verdict  having  been  denied,  this  appeal  was  taken. 

Samuel  Hand,  Matthew  Hale  and  Frank  Loomis,  for  the 
appellant. 

Amasa  J.  Parker,  for  the  respondent. 

BOCKES,  J. : 

The  case  is  the  same  now  as  when  it  was  before  the  court  on  the 
former  appeal,  as  regards  the  question  of  defendant's  liability  for 
*  See  Lunt  v.  L.  A  2f.  W.  Railway  Co.  L.  R.  (12  B.),  281. 


PECK  v.  N.  T.  C.  &  H.  R.  R.  R.  CO.  287 

THIKD  DEPAHTMENT,  SEPTEMBER  TEBM,  1876. 

the  act  of  the  brakeman,  Cochran.  (11  K  Y.  S.  C.  [4  Hun],  236.) 
The  brakeman  was  stationed  at  the  car  to  direct  passengers  who 
might  attempt  or  desire  to  enter.  The  plaintiff  disobeyed  his 
direction,  whereupon  the  former  forcibly  ejected  him.  There  was 
no  evidence  that  the  brakeman  had  been  especially  instructed  to 
remove  any  one  from  the  cars  by  force,  but  he  was  placed  in  charge 
to  direct  passengers  with  a  view  to  their  orderly  and  proper  arrange- 
ment therein.  Under  such  a  state  of  facts  it  was  held  that  the 
brakeman  must  be  deemed  to  have  been  acting  within  the  scope  of 
his  employment,  and  that  the  company  was  liable  in  case  he  used 
excessive  and  unnecessary  force  in  removing  the  plaintiff  from  the 
cars.  There  has  been  some  loose  writing  on  the  question  as  to  the 
liability  of  the  master  for  the  wrongful  act  of  his  servant,  but  the 
cases  seem  to  hold  quite  uniformly  that  the  master  is  liable  for  the 
wrongful  act  of  his  servant,  if  done  in  his  service  and  within  the 
scope  of  his  employment,  and  this,  although  in  doing  the  act  the 
servant  depart  from  the  instructions  of  the  master.  (Biggins  v. 
Watervliet  Turnpike  and  R.  R.  Co.,  46  N.  Y.,  23.)  In  this  case. 
ANDREWS,  J.,  says  :  "  If  he  (the  master)  employs  incompetent  or 
untrustworthy  agents  it  is  his  fault,  and  whether  the  injury  to  third 
persons  is  caused  by  the  negligence  or  positive  misfeasance  of  the 
agent,  the  maxim  respondeat  superior  applies,  provided  only,  that 
the  agent  -was  acting  at  the  time  for  the  principal,  and  within  the 
scope  of  the  business  intrusted  to  him."  In  Cosgrove  v.  Ogden 
(49  N.  Y.,  255-257)  Judge  GROVER  says  :  "  The  test  of  the  master'? 
responsibility  for  the  act  of  his  servant  is  not  whether  such  act  was 
done  according  to  the  instructions  of  the  master  to  the  servant,  but 
whether  it  is  done  in  the  prosecution  of  the  business  that  the  ser- 
vant was  employed  by  the  master  to  do."  It  has  also  been  said  in 
some  cases,  that  when  the  principal  puts  the  agent  in  place  of  him- 
•elf,  he  is  liable  for  the  wrongful  acts  committed  by  the  agent  in  the 
course  of  the  employment,  or  the  carrying  out  of  the  business  with 
which  he  is  intrusted.  So  in  the  recent  case  of  Rounds  v.  The 
Del.,  Lac.  and  W.  R.  R.  Co.,  in  the  Court  of  Appeals  (2  N. 
Y.  W.  Digest,  260),  it  was  held  that  when  authority  is  con 
ferred  on  a  servant  by  a  master  to  act  for  him,  it  carries  with 
it,  by  implication,  authority  to  do  all  things  necessary  to  its  execu- 
tion, and  the  master  is  liable  for  his  tortious  acts,  although 


288  PECK  v.  N.  Y.  C.  &  H.  R.  R.  R.  CO. 

THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 

he  depart  from  the  private  instructions  of  the  master,  provided 
he  was  engaged  at  the  time  in  doing  his  master's  business,  and 
was  acting  within  the  general  scope  of  his  employment.  The  case 
of  Bayley  v.  Man.,  Sheff.  and  Lincolnshire  R.  Co.  (L.  R.,  7  Com. 
PI.,  415 ;  4  Eng.  Rep.  [Moak's  notes],  384),  seems  much  like  the 
one  in  hand.  In  this  case  a  railway  porter,  having  been  intrusted 
with  a  general  authority  for  certain  purposes,  in  connection  with 
the  management  of  the  carriages  of  his  employers  in  the  station 
where  he  was  employed,  the  company  was  held  liable  for  hia 
wrongful  act  in  removing  a  passenger  from  a  carriage  which  he 
erroneously  thought  was  the  wrong  carriage.  Now,  in  the  case  at 
bar,  the  brakeman  was  put  in  charge  of  the  cars  with  a  view  to 
secure  the  proper  and  orderly  seating  of  passengers.  In  carrying 
out  this  purpose  he  committed  the  act  complained  of.  He  was 
acting,  therefore,  within  the  scope  of  his  employment.  The  case 
was  tried  upon  the  theory,  and  doubtless  correctly  in  that  regard, 
that  he  might  suppress  disorder  and  secure  order  among  the  passen- 
gers who  should  enter  or  desire  to  enter  the  cars.  As  a  servant  of 
the  company  he  would  have  been  protected  in  using  all  necessary 
force  to  secure  that  end  ;  and  it  must  follow,  therefore,  within  the 
doctrine  of  the  cases  cited,  that  the  company  would  be  liable  for 
his  wrongful  acts  in  carrying  such  purpose  into  effect. 

There  was  no  error  in  the  refusal  of  the  learned  judge  to  nonsuit 
as  requested.  Nor  was  there  any  error  in  the  admission  or  rejec- 
tion of  evidence ;  nor  in  the  charge  of  the  judge  or  in  his  refusal 
to  charge  as  requested.  But  a  serious  difficulty  arises  on  the  point 
that  the  amount  of  damages  awarded  by  the  jury  is  excessive.  It 
was  on  this  ground  that  a  new  trial  was  granted  on  the  former 
appeal.  The  former  verdict  was  $5,000.  This  sum  was  deemed 
quite  extravagant  and  palpably  unjust,  in  view  of  the  case  made 
on  the  evidence.  The  verdict  on  the  retrial  was  for  $4,000.  The 
case  is  quite  similar  on  the  proof  to  that  before  considered  by  the 
court,  and  the  reduction  in  the  sum  now  awarded  by  the  jury 
seems  much  less  than  it  should  have  been,  in  view  of  the  remarks 
then  made  by  the  court.  (4  Hun,  238,  239.)  But  even  supposing 
the  amount  now  awarded  is  deemed  by  the  court  large,  is  it  within 
the  province  and  duty  of  the  court  to  grant  another  new  trial  on 
this  ground?  A  second  jury  has  considered  the  case  under  admo- 


PECK  v.  N.  Y.  C.  &  H.  R.  R.  R.  CO.  289 

THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 

nition  from  the  court,  and  has  made  some  deduction  from  the  sum 
before  awarded.  The  subject  of  damages  is  for  the  jury,  and  must 
be  at  all  times  in  their  discretion  and  judgment.  The  court  can 
only  interfere  on  this  point  when  it  is  apparent  that  the  jury  were 
improperly  influenced,  or  must  have  acted  from  passion,  partiality 
or  corruption.  The  authority  to  grant  new  trials  on  the  ground 
of  excessive  damages  is  undoubted,  but  its  exercise  by  the  courts 
has  been  about  equally  capricious  as  has  been  the  verdicts  of  juries. 
Little  aid  can  be  obtained  on  this  subject  by  referring  to  cases,  as 
will  be  seen  on  turning  to  the  opinion  of  Mr.  Justice  HOGEBOOM, 
in  Murray  v.  Hud.  R.  JR.  E.  Co.  (47  Barb.,  196).  The  verdict 
there  was  for  $8,000,  and  a  new  trial  was  granted  unless  the 
plaintiff  would  reduce  it  to  $6,000.  This  disposition  of  the 
case  was  directly  against  the  decision  in  C'assin  v.  Delany 
(38  N.  Y.,  178),  where  it  was  held  that  the  General  Term  had 
no  power  to  order  the  reduction  of  the  verdict  to  a  sum  named, 
as  the  alternative  of  a  new  trial.  However,  the  decision  in  Mur- 
ray's Case  was  after  this,  in  1871,  affirmed  in  the  Court  of  Appeals. 
(48  N.  Y.,  655,  n.)  The  affirmance  in  Murray's  Case  must  be 
deemed  to  overrule  the  previous  decision  in  Cassin  v.  Delany. 
It  must  be  admitted,  I  think,  that  the  verdict  of  $4,000  in  this  case 
is  large,  in  view  of  the  injury  here  proved ;  but  this  sum  having 
been  awarded  by  a  second  jury,  the  case  having  been  sent  back  for 
reconsideration  on  that  point,  and  nothing  appearing  except  the 
Amount,  on  which  to  predicate  partiality,  corruption  or  improper 
influence,  I  think  the  court  must  accept  it  as  final  and  conclusive. 
The  order  appealed  from  must  be  affirmed,  and  the  motion  for  a 
new  trial  on  the  case  and  exceptions  must  be  denied,  and  the 
plaintiff  is  entitled  to  judgment  on  the  verdict,  with  costs. 

LEARNED,  P.  J.,  and  BOARDMAN,  J.,  concurred. 

Order  affirmed,  with  costs. 
HUH— VOL.  VIH        87 


290  BROOKS  v.  HATHAWAY. 

THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 


HENRY  O.  BROOKS,  PLAINTIFF,  v.  CHARLES  E.  HATHA- 
AVAY  AND  E.  E.  HEATH,  DEFENDANTS. 

Execution  —  Exemption  law  —  Laws  of  1859,  chap.  134  —  duty  of  debtor,  to  dnim 
exemption  within  reasonable  time. 

In  the  latter  part  of  February,  1874,  the  defendant,  a  deputy  sheriff,  seized  a 
wagon  belonging  to  the  plaintiff  under  an  execution  issued  against  him,  and 
advertised  the  same  to  be  sold  on  March  tenth,  but  subsequently,  at  the 
request  of  the  plaintiff,  the  sale  was  postponed.  At  the  time  of  the  levy  the 
plaintiff  owned  three  or  four  other  wagons,  all  of  which  were  subsequently, 
and  prior  to  April  fourteenth,  disposed  of  by  him.  On  the  latter  day  the 
defendant  took  possession  of  the  wagon  and  sold  it,  against  the  objections  of 
the  plaintiff  who  claimed  that  it  was  exempt  under  chapter  134  of  1859.  In 
an  action  to  recover  for  its  conversion,  held,  that  the  plaintiff  was  bound  to  make 
his  election  within  a  reasonable  time,  and  to  notify  the  officer  that  he  claimed 
the  property  as  exempt,  and  that  the  question  whether  or  not  he  had  made  his 
election  within  a  reasonable  time  should,  under  the  circumstances  of  this  case, 
have  been  submitted  to  the  jury. 

MOTION  for  a  new  trial  on  exceptions  ordered  to  be  heard  in  the 
first  instance  at  the  General  Term,  after  a  verdict  in  favor  of  the 
plaintiff. 

This  action  was  brought  to  recover  the  damages  sustained  in 
consequence  of  the  unlawful  taking  of  a  wagon  belonging  to  the 
plaintiff.  The  defendants  justified  under  an  execution  issued 
against  plaintiff,  in  favor  of  one  Sands.  The  defendant  Heath  is 
the  deputy  sheriff  who  levied  and  sold,  and  Hathaway  aided  him 
in  so  doing,  and  purchased  the  wagon.  Plaintiff  claimed  that  the 
wagon  was  exempt,  under  the  exemption  law.  (Sees.  Laws  1859, 
chap.  134.) 

The  levy  was  made  the  last  of  February,  1874,  and  plaintiff  had 
then  four  teams  and  three  or  four  other  wagons.  The  sale  was 
advertised  for  March  tenth.  The  deputy  sheriff  testified  that, 
before  that  time,  plaintiff  had  a  conversation  with  him  about 
adjourning  the  sale.  Plaintiff  testified  that  he  knew  of  the  levy 
ten  or  twelve  days  after  it  was  made,  and  that  he  brought  a  letter 
to  the  deputy  sheriff,  from  Sands,  requesting  him  not  to  sell.  The 
sale  was  postponed,  and  the  property  remained  in  plaintiff's  pos- 
session. About  April  fourteenth,  the  deputy  sheriff  took  actual 


BROOKS  v.  HATHAWAY.  291 

THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 

possession  of  the  property,  and  then  plaintiff  forbade  him,  claiming 
that  the  property  was  exempt.  Meantime,  the  other  wagons  had 
been  disposed  of  by  plaintiff. 

On  the  trial  the  learned  justice  instructed  the  jury,  as  matter  of 
law,  that  plaintiff  was  entitled  to  recover  the  value  of  the  wagon, 
and  defendants  excepted.  Defendants  also  asked  the  learned  jus- 
tice to  submit  to  the  jury  the  question,  whether  the  length  of  time 
which  had  elapsed  before  plaintiff  notified  the  officer  was  not  suffi- 
cient to  estop  him  from  claiming  the  wagon  as  exempt.  This  was 
refused,  and  defendants  excepted. 

A.  H.  Sewell,  for  the  appellant.  It  was  a  question  of  fact  for 
the  jury  to  determine,  which  one  of  the  four  teams  of  horses  and 
which  one  of  the  four  or  five  wagons  constituted  the  plaintiff's 
necessary  team,  or  whether  in  fact  any  team  was  necessary  to  the 
support  of  the  plaintiff  and  his  family.  (Daius  v.  Prosser,  32 
Barb.,  291 ;  Baker  v.  Brini/nall,  52  id.,  193  ;  Lockwood  v.  Young- 
love,  27  id.,  507 ;  Griffin  v.  Southerland,  14  id.,  457 ;  Smith  v. 
Slade,  57  id.,  637 ;  Wilcox  v.  Hawley,  31  N.  Y..  656 ;  Shaw  v. 
Davis,  55  Barb.,  392;  Seaman  v.  Luce,  23  id.,  257;  Wilson  v. 
Ellis,  1  Den.,  462.)  The  plaintiff  having  failed  to  make  known 
his  election  within  a  reasonable  time,  is  presumed  to  have  acquiesced 
in  the  levy,  and  is  estopped  from  claiming  that  the  property  was 
exempt.  (Seaman  v.  Luce,  23  Barb.,  242 ;  Lockwood  v.  Young- 
love,  27  id.,  508.) 

Oscar  H.  Curtis,  for  the  respondents. 

LEARN  ED,  P.  J. : 

The  plaintiff  knew  of  the  levy  before  March  tenth ;  at  least  the 
jury  might  have  so  found.  There  was  some  evidence,  too,  that 
shortly  after  that  day  he  made  arrangements  to  have  the  property 
sold  before  May  thirteenth,  to  which  time  the  deputy  sheriff  had 
postponed  the  sale.  The  claim  that  the  property  was  exempt  was 
first  made  about  April  fourteenth,  more  than  a  month  after  knowl- 
edge of  the  levy. 

Where  the  judgment  debtor  has  other  property,  apparently 
exempt,  or  which  might  be  exempt,  under  this  act,  he  must  within 


292  CHENANGO  BRIDGE  CO.  v.  PAIGE. 

THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 

a  reasonable  time  after  knowledge  of  the  levy,  make  his  election, 
and  give  notice  to  the  officer  that  he  claims  as  exempt  the  prop- 
erty levied  upon.  (Seaman  v.  Luce,  23  Barb.,  240;  to  the  same 
effect  is  Smith  v.  Slade,  57  Barb.,  641 ;  and  substantially  Twinam 
v.  Swart,  4  Lans.,  263.) 

Nothing  in  Wilcox  v.  llawley  (31  N.  Y.,  655)  conflicts  with  this. 
There  were  not,  in  that  case,  two  or  more  teams  belonging  to  the 
debtor,  any  one  of  which  he  might  elect  to  consider  exempt.  And 
when  a  judgment  debtor  has  several  teams  and  wagons,  one  of 
which  has  been  levied  upon  to  his  knowledge,  it  would  be  unrea- 
sonable that  he  should  wait  for  over  a  month,  disposing,  meantime, 
of  his  other  wagons  and  teams,  and  then,  for  the  first  time,  assert 
that  this  was  his  exempt  wagon. 

Other  questions  were  raised  which  we  need  not  pass  upon.  We 
think  it  was  erroneous  to  charge,  as  matter  of  law,  that  the  plain- 
tiff was  entitled  to  recover,  and  to  refuse  to  submit  the  question 
whether  the  length  of  time  which  had  elapsed  was  not  sufficient  to 
prevent  a  recovery. 

It  is  not  necessary  to  say  whether  the  delay  of  a  month,  unex- 
plained, can  be  reasonable. 

A  new  trial  is  granted,  costs  to  abide  the  event. 

Present  —  LEARNED,  P.  J.,  BOCKES  and  BOABDMAN,  JJ. 
New  trial  granted,  costs  to  abide  event. 


THE  CHENANGO  BRIDGE  COMPANY,  PLAINTIFF,  v. 
CLINTON  F.  PAIGE  AND  FREDERICK  LEWIS,  SURVIV- 
ING EXECUTORS  OF  HAZARD  LEWIS,  DECEASED,  DEFENDANTS. 

Decision  of  "highest  tribunal"  —  acts  done  under — protection  against  penalty  or 

forfeiture  therefor. 

The  Binghamton  Bridge  Company  having,  in  1855,  erected  a  bridge  over  the  Che- 
nango  river,  at  Binghamton,  within  eighty  rods  of  plaintiffs  bridge,  the  plain- 
tiff in  1856  commenced  an  action  to  enjoin  it  from  collecting  toll  thereon,  on 
the  ground  that,  by  its  charter,  no  bridge  could  be  erected  within  two  miles  of 
the  one  previously  erected  by  it.  The  plaintiff  was  defeated  at  the  Circuit,  and 
the  judgment  affirmed  at  the  General  Term  and  by  the  Court  of  Appeals,  but  sub- 
sequently reversed  by  the  Supreme  Court  of  the  United  States. 


CHENANGO  BRIDGE  CO.  v.  PAIGE.  298 

THIRD  DEPARTMENT,  SEPTEMBEK  TERM,  1876. 

In  1865  the  Binghamton  Bridge  Company's  bridge  being  carried  away  by  a 
freshet,  struck  and  carried  away  plaintiff's  bridge.  Plaintiff  brought  this  action 
to  recover  the  tolls  unlawfully  diverted  from  it  by  the  other  bridge,  and  dam- 
ages arising  from  its  bridge  being  carried  away.  Defendant  maintained  that 
our  courts  having  sustained  the  validity  of  the  statute  incorporating  the  Bing- 
hamton Bridge  Company,  defendants'  testator  was  protected  by  2  Revised 
Statutes,  602,  although  the  decision  of  our  courts  had  since  been  overruled. 

Held,  that  this  was  not  so  for  the  reason :  first,  that  the  bridge  was  not  built  after 
any  decision  of  our  courts  had  given  a  construction  to  the  act ;  and,  second, 
that  the  recovery  of  damages  by  reason  of  the  loss  of  toll  was  not  a  penalty  or 
forfeiture. 

Held,  further,  that  the  principle  laid  down  in  Harris  v.  Jex  (55  N.  Y.,  421),  that 
a  person  had  a  right  to  rely  upon  the  decision  of  the  highest  tribunal  of  the 
land  upon  any  question,  and  was  not  bound  to  foresee  that  it  would  be  reversed, 
was  not  applicable,  as  the  decision  of  the  Court  of  Appeals  was  not  the  decision 
of  the  highest  tribunal  of  the  land,  upon  the  matter  involved. 

MOTION  for  a  new  trial  on  exceptions  ordered  to  be  heard  in 
the  first  instance  at  the  General  Terra. 

This  action  was  brought  to  recover  for  damages  occasioned  by 
the  erection  of  a  bridge  across  the  Chenango  river  at  Binghamton, 
by  the  Binghamton  Bridge  Company.  The  plaintiff  was  incor- 
porated by  chapter  89,  Laws  of  1805,  and  authorized  to  build  a 
bridge  across  the  Chenango  river  at  Binghamton.  The  act  declared 
"  that  it  shall  not  be  lawful  for  any  person  or  persons  to  erect  any 
bridge  *  *  *  within  two  miles  either  above  or  below  "  plain- 
tiff's  bridge.  The  plaintiff  built  and  maintained  the  bridge  until 
it  was  swept  away  in  1865.  In  1855  an  act  was  passed  incorpo- 
rating the  Binghamton  Bridge  Company,  and  authorizing  it  to 
construct  a  bridge  across  the  Chenango  river  at  Binghamton,  at  a 
point  not  less  than  eighty  rods  from  the  plaintiff's  bridge. 

The  defendants'  testator,  Hazard  Lewis,  became  a  stockholder 
in  the  Binghamton  Bridge  Company,  was  always  a  director  in  it, 
was  at  times  its  president,  and  as  a  contractor  built  their  bridge, 
and  under  their  direction  did  some  repairs  on  it  as  late  as  1862, 
and  died  the  2d  day  of  July,  1863 ;  and  the  defendants,  as  exec- 
utors of  hie  will,  qualified  on  the  15th  of  July,  1863. 

Plaintiff  notified  Hazard  Lewis  that  it  "  would  hold  him,  the 
•aid  Hazard  'Lewis,  personally  responsible  for  the  erection  of  such 
%  bridge  and  for  all  the  consequences  thereof."  In  May,  1856, 
plaintiff  brought  an  action  against  the  Binghamton  Bridge  Com 


294  CHENANGO  BRIDGE  CO.  v.  PAIGE. 

THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 

pany  to  enjoin  it  from  constructing  and  using  its  bridge,  and  iron? 
collecting  tolls,  and  for  damages. 

The  action  was  tried  at  Special  Term  before  Mr.  Justice  GKAY, 
who  dismissed  the  complaint  iu  January,  1858,  and  thereon  judg- 
ment was  entered  March,  1858,  which  was  affirmed  on  appeal  by 
the  General  Term  and  Court  of  Appeals.  A  writ  of  error  was  then 
brought,  taking  the  case  to  the  Supreme  Court  of  the  United 
States,  in  which  court  the  judgments  were  reversed  in  December, 
1865,  and  the  cause  remanded  to  the  Supreme  Court,  with  direc- 
tions to  enter  judgment  for  plaintiff,  etc. 

A  new  trial  was  had  before  Mr.  Justice  BOARDMAN,  who,  in 
November,  1866,  rendered  a  decision  granting  the  prayer  in  plain- 
tiff's complaint,  with  damages.  Defendant  appealed  from  this 
decision  to  the  General  Term  in  January,  1867,  where  Judge 
BOAKDMAN'S  decision  was  affirmed,  and  final  judgment  in  that 
action  was  entered  in  favor  of  plaintiff  against  the  Binghamton 
Bridge  Company,  November  19,  1867. 

After  the  said  Lewis'  death,  and  in  the  same  year,  the  plaintiffs 
took  down  their  bridge  and  rebuilt  it  in  the  year  1864. 

The  bridge  of  the  Binghamton  Bridge  Company  was  swept  away 
by  the  flood  of  1865,  and  was  carried  by  the  stream  against  the 
plaintiff's  bridge,  and  that  was  carried  alon^  with  it. 

This  action,  commenced  on  the  23d  day  of  March,  1869,  was 
brought  to  recover  the  tolls  diverted  from  Ov»  plaintiff's  bridge, 
and  for  the  loss  of  the  bridge  itself. 

One  trial  was  had  and  plaintiff  recovered  ag*\»»st  these  defend- 
ants, but  a  new  trial  was  granted  by  the  Genera)  Term  in  this 
department  (see  63  Barb.,  Ill),  on  the  ground  that  improper  evi- 
dence was  admitted.  A  retrial  was  had,  vhen  plaintiff  agair 
succeeded. 

Chapman  <&  Martin,  for  the  plaintiff. 
Giles  W.  Hotchkiss,  for  the  defendants. 

LEARNED,  P.  J. : 

This  cause  has  already  been  once  before  this  court,  and  the 
decision  is  reported  63  Barbour,  111.  A  majority  of  the  court  seem 


CHENANGO  BRIDGE  CO.  v.  PAIGE.  295 

THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 

to  have  then  held  that  the  plaintiff  might  maintain  both  causes  of 
action,  set  forth  in  the  complaint.  We  are  bound  by  that  decision, 
which  was  followed  by  the  learned  justice  who  last  tried  the  cause. 
If  we  were  not,  I  should  adopt  the  views  of  Mr.  Justice  PARKER 
in  his  dissenting  opinion.  The  right  of  riparian  owners  to  con- 
struct such  a  bridge  is  not  disputed.  It  was  the  permitting  of  the 
same  to  be  used  by  the  public,  free  or  for  toll,  which  was  held  to 
violate  the  plaintiff's  rights.  (The  Binghamton  Bridge,  3  Wall., 
51.)  But  the  construction,  which  was  lawful,  not  the  use,  which 
was  unlawful,  contributed  to  the  destruction  of  plaintiff's  bridge. 

I  understand  that  the  majority  of  the  court  also  held  that  Lewis 
(and  therefore  his  estate),  was  liable  for  what  the  corporation  did, 
or  for  what  he  did,  as  its  agent,  in  constructing  the  bridge,  and 
was  also  liable  for  the  loss  of  tolls  which  the  plaintiff  suffered 
through  the  illegal  use  of  the  bridge  by  the  corporation  which 
owned  it.  That  decision  concludes  us,  although  I  cannot  assent 
to  the  doctrine. 

One  point  is  made  by  the  defendants  which  was  not  presented 
to  the  court  on  the  former  argument.  That  is,  "  that  the  construc- 
tion of  their  statutes  by  our  own  courts  having  sustained  the  posi- 
tion and  conduct  of  the  Binghamton  Bridge  Company,  defendants' 
testator  is  protected,  although  the  decision  of  our  courts  has  since 
been  reversed."  To  support  this  the  defendants  cite  2  Revised 
Statutes  (§  1  [66],  part  3,  title  3,  art.  1  [in.  p.],  602).  But  the 
building  of  the  bridge  was  not  after  an}'  decision  of  the  Supreme 
Court  giving  construction  to  the  act.  And  the  recovery  for  dam- 
age by  reason  of  the  loss  of  the  tolls  cannot  be  called  a  penalty 
or  forfeiture. 

The  defendants  further  urge  that  the  principle  decided  in  Harris 
v.  Jex  (55  N.  Y.,  421),  applies.  In  that  case  it  was  held  that 
where  the  highest  tribunal  in  the  land  has  decided  a  question,  a 
person  had  a  right  to  repose  on  such  decision ;  that  he  was  not 
bound  to  foresee  that  the  same  tribunal  would  reverse  its  decision 
the  next  year.  But,  in  the  present  case,  the  highest  judicial  tri- 
bunal in  the  land  has  never  decided  that  the  Binghamton  Bridge 
Company  had  a  right  to  maintain  a  public  bridge,  or  to  take  toll. 
That  question  was  in  dispute,  at  all  times,  from  the  commencement 
of  the  former  suit  in  May,  1856,  to  the  decision  of  the  United 


296  HILL  v.  SYRACUSE,  B.  &  N.  Y.  R.  R.  CO. 

THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 

States  Supreme  Court,  in  December,  1865.  On  the  point  involved 
the  Court  of  Appeals  was  not  the  highest  tribunal. 

Again,  in  the  present  case  the  plaintiff  seeks  to  recover  for  the 
tolls  which  it  ought  to  have  received,  and  which  were  in  fact 
received  by  the  Binghamtou  Bridge  Company.  The  latter  ought 
not  to  retain  the  benefit  of  its  own  unlawful  act.  But  in  Harris 
v.  Jex  the  defendant  endeavored  to  defeat  the  foreclosure  of  a 
mortgage  by  proof  of  a  mere  tender  of  the  amount  in  national 
currency,  made  at  a  time  when,  by  the  decision  of  the  United 
States  Supreme  Court,  only  gold  was  a  legal  tender,  under  the 
circumstances  of  that  case.  So  that  if  a  retroactive  effect  had 
been  given  to  the  subsequent  reversal  by  that  court  of  its  own 
decision,  the  plaintiff  would  have  lost  the  lien  of  his  mortgage 
without  receiving  payment  of  his  debt,  under  the  harsh  rule  of 
Kortright  v.  Cody  (21  N.  Y.,  343). 

Following,  as  we  are  bound  to  do,  the  former  decision  of  this 
court,  we  are  compelled  to  deny  the  motion  for  a  new  trial  and  to 
order  judgment  on  the  verdict,  with  costs. 

Present — LEARNED,  P.  J.,  and  BOOKES,  J.  BOABDMAN,  J.,  not 
acting. 

Motion  for  new  trial  denied  and  judgment  ordered  for  plaintiff 
on  verdict,  with  costs. 


SILAS  R.  HILL,  PLAINTIFF,  v.  THE  SYRACUSE,  BING- 
HAMTON  AND  NEW  YORK  RAILROAD   COMPANY, 

DEFENDANT. 

Parol  contract — when  not  merged  in  subsequent  written  contract — Bitt  of  lading. 

Plaintiff  delivered  a  quantity  of  wool  to  the  defendant  in  pursuance  of,  and 
relying  upon  a  parol  contract  that  it  should  be  shipped  within  two  weeks ; 
afterwards  and  upon  the  same  day  receipts  were  given  to  him  by  which 
defendant  was  exempted  from  all  liability  arising  from  delay;  plaintiff  did  not 
examine  the  receipts,  except  to  see  that  the  weights  were  correct,  until  the 
next  day,  nor  did  he  discover  the  condition  until  that  time.  The  wool  was  not 
shipped  for  two  months,  by  which  time  the  price  had  declined  nearly  thirty 
cents  per  pound.  In  an  action  to  recover  the  damages  occasioned  by  the  delay 


HILL  v.  SYRACUSE,  B.  &  N.  Y.  R.  R.  CO.  297 

THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 

held,  that  the  parol  agreement  was  not  merged  in  the  receipts,  and  that  the 
plaintiff  was  entitled  to  recover. 
BottwMcv.  Bolt,  and  Ohio  R.  JR.  Go.  (46  N.  Y.,  712)  followed. 

MOTION  for  a  new  trial  upon  exceptions  ordered  to  be  heard  in  the 
first  instance  at  the  General  Term,  after  a  verdict  by  the  jury  in 
favor  of  the  plaintiff. 

R.  A.  Stanton,  for  the  plaintiff. 

Oeo.  N.  Kennedy,  for  the  defendant.  The  written  contract  and 
receipt,  with  the  conditions  and  rules  forming  a  part  thereof,  is  the 
actual  agreement  between  the  parties,  and  being  in  the  nature  of  a 
contract,  limiting  the  common-law  liability  of  common  carriers, 
cannot  be  altered,  changed  or  modified  in  its  legal  effect,  by  parol 
evidence  of  any  talk  between  the  plaintiff  and  the  freight  agent  of 
defendants,  preceding  its  execution.  (Long  v.  N.  T.  0.  R.  R. 
Co.,  50  N.  Y.,  76;  Belger  v.  Dinsmore,  51  id.,  166 ;  Collender  v. 
Dinsmore,  55  id.,  204 ;  Steers  v.  Liverpool,  New  York  and  Phila- 
delphia Steamship  Co.,  57  id.,  1 ;  Magnin  v.  Dinsmore,  56  id., 
168;  Steiger  v.  Erie  Railway  Co.,  12  S.  C.  N.  Y.  [5  Hun],  345.) 

BoAKDMAN,    J.  : 

The  plaintiff  delivered  a  quantity  of  wool  at  defendant's  depot, 
at  Whitney's  Point,  to  be  carried  to  New  York  city.  Plaintiff 
gave  evidence  tending  to  show  that  before  the  delivery  of  the  wool 
he  made  a  parol  agreement  with  the  person  in  charge,  that  the  wool 
should  be  shipped  by  defendant  within  two  weeks,  and  that  upon 
the  faith  of  such  agreement,  the  delivery  was  made.  Afterwards, 
and  on  the  same  day,  as  plaintiff  was  about  to  start  for  his  home, 
some  twenty-six  miles  distant,  he  received  from  defendant's  agent 
at  the  depot,  some  receipts  for  the  wool,  but  examined  them  no 
further  than  to  see  that  the  weights  were  correct,  and  then  put 
them  in  his  pocket,  and  did  not  notice  the  conditions  thereon 
until  next  day.  By  such  conditions  the  defendant  was  exempted 
from  liability  arising  from  any  delay.  The  wool  was  not  shipped 
until  nearly  two  months  after.  In  the  mean  time  the  value  of 
the  wool  in  market  had  fallen  off  nearly  thirty  cents  per  pound. 
The  plaintiff  brings  this  action  to  recover  this  difference  in  value 
as  damages,  relying  upon  the  breach  of  the  parol  contract  to  ship 
HUN—VOL.  VHL  88 


298  HILL  v.  SYRACUSE,  B.  &  N.  Y.  R.  R.  CO. 

THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 

within  two  weeks.  The  defendant  relies  upon  the  terms  and  con- 
ditions of  its  receipt  given  to  plaintiff,  whereby  it  claims  to  be 
exempt  from  liability.  The  case  has  been  three  times  tried,  the 
plaintiff  succeeding  on  each  occasion. 

The  verdict  of  the  jury  establishes  the  making  of  the  parol  con- 
tract as  alleged  by  plaintiff,  the  delivery  of  the  wool  thereunder, 
and  the  subsequent  acceptance  by  plaintiff  of  the  receipts  without 
notice  or  knowledge,  on  that  day,  of  their  contents ;  it  also  estab- 
lishes, so  far  as  it  can  be  a  question  of  fact,  that  it  was  not  plain- 
tiff's intention  to  make  such  a  contract  as  is  contained  in  the 
printed  matter  contained  on  the  receipts,  nor  to  merge  or  extin- 
guish his  prior  parol  contract  by  the  acceptance  of  such  receipts. 

All  that  remains  for  us  to  decide  is,  whether,  as  a  matter  of  law, 
the  receipt  expresses  the  contract  between  the  parties  ;  if  it  does, 
the  plaintiff  is  remediless.  Otherwise,  the  verdict  of  the  jury  will 
be  conclusive,  and  must  stand. 

The  case  of  Bostwick  v.  Bait,  and  Ohio  R.  R.  Co.  (45  N.  Y., 
712)  was  relied  upon  at  the  Circuit.  In  that  case,  RAPALLO,  J., 
says:  "The  verbal  agreement  had  been  acted  upon,  and  under  it 
plaintiff  had  parted  with  all  control  over  his  goods.  The  rule  that 
the  prior  negotiations  are  merged  in  a  subsequent  written  contract, 
does  not  apply  to  such  a  case  as  this.  If  the  plaintiff  had  expressly 
assented  to  the  terms  of  the  bill  of  lading  subsequently  delivered 
to  him,  such  assent  would  operate  as  a  change  of  the  contract  origi- 
nally made,  and  under  which  he  had  parted  with  his  property,  but 
after  the  verbal  agreement  had  been  consummated,  and  rights  had 
accrued  under  it,  the  mere  receipt  of  the  bill  of  lading,  inadver- 
tently omitting  to  examine  the  printed  conditions,  was  not  suffi- 
cient to  conclude  the  plaintiff  from  showing  what  the  actual  agree- 
ment was  under  which  the  goods  had  been  shipped."  This  lan- 
guage applies  directly  to  the  case  under  consideration.  The  goods 
in  the  case  cited  had  been  in  fact  shipped  when  the  receipts 
were  delivered.  It  was  therefore  impracticable  for  the  shipper  to 
resume  possession  of  his  property.  In  the  present  case,  it  was  in 
the  power  of  the  plaintiff  to  surrender  his  bills  of  lading,  and 
resume  possession  of  his  wool,  but  it  is  not  apparent  how  that  cir- 
cumstance affects  the  principle  enunciated.  In  either  case  the  con- 
tract actually  made  between  the  parties,  by  which  the  defendant 


HILL  v.  SYRACUSE,  B.  &  N.  Y.  R.  R.  CO.  299 

THIKD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 

acquires  possession  and  control  of  the  property,  is  made  to  prevail 
rather  than  a  contract  which  was  not  within  the  intention  of 
plaintiff,  and  probably  not  within  the  intention  of  the  agent  of  the 
defendant.  In  either  case  it  was  the  substitution  by  carelessness 
and  mistake,  of  the  usual  bill  of  lading,  instead  of  adapting  it  to 
the  contract  actually  made.  So  this  verdict  might  stand  if  the 
bill  of  lading  had  been  delivered  simultaneously  with  the  delivery 
of  the  property,  if  the  jury  was  satisfied  of  the  mistake.  (Long  v. 
N.  T.  C.  R.  R.  Co.,  50  N.  Y.,  76.)  There  is  no  evidence  of  any 
intention  to  modify  the  parol  contract  when  the  receipts  were 
given.  If  that  effect  is  produced,  it  will  be  in  obedience  to  a  pre- 
sumption arising  from  the  contents  of  the  receipts,  proved  by  plain- 
tiff to  be  false,  and  without  any  positive  evidence  of  its  truth. 

The  same  principle  is  again  affirmed  in  Coffin  v.  N.  Y.  G.  R. 
R.  Co.  (64  Barb.,  379 ;  affirmed  in  the  Court  of  Appeals  without  an 
opinion,  56  N.  Y.,  632;  Goodrich  v.  Thompson,  44  N.  Y.,  324.) 

Unless  there  be  some  rule  of  law  compelling  us  to  recognize  a 
merger  of  a  parol  agreement  in  a  subsequent  written  contract,  in 
the  absence  of  and  in  hostility  to  such  an  intention,  the  parol 
agreement  in  this  case  should  stand,  because  under  the  verdict  of 
the  jury  it  is  the  agreement  under  which  the  parties  acted,  in  the 
delivery  by  one  and  the  acceptance  by  the  other  of  the  property. 
By  what  right,  then,  can  the  defendant,  without  express  evidence 
of  assent  on  the  part  of  the  plaintiff,  change  such  contract  so  as  to 
exempt  it  from  a  duty  and  liability  specially  contracted  for?  Courts 
do  not  favor  the  doctrine  of  merger  where  it  would  violate  the 
intention  of  the  parties,  and  work  injustice.  (  Wiibeck  v.  Waine, 
16  N.  Y.,  532.)  If  these  conclusions  are  correct,  no  error  was 
committed  in  declining  to  charge  the  jury  that  the  receipts  fur- 
nished the  evidence  of  the  contract,  and  that  the  parol  contract 
was  merged  in  the  receipts  and  conditions  thereto  annexed.  No 
exception  appears  to  have  been  taken  to  the  charge  as  made  in 
reference  to  these  contracts,  nor  was  there  any  request  to  submit 
to  the  jury  to  find  and  determine  the  intention  of  the  parties, 
touching  the  effect  to  be  given  to  the  receipts. 

I  have  assumed,  for  the  purpose  of  this  opinion,  that  if  the  terms 
of  the  receipts  controlled,  the  defendant  would  not  be  liable.  I 
think  that  is  true,  because  there  is  no  evidence  of  gross  negligence 


800  PRENTICE  v.  WHITNEY. 

THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 

on  the  part  of  the  defendant  in  not  sooner  forwarding  the  wool ; 
the  effect  of  storms  upon  the  road  necessarily  delayed  the  shipment 
of  property.  But  in  any  event  that  would  be  a  question  of  fact  for 
the  jury,  and  if  it  is  of  any  importance  in  this  case  it  has  been 
found  against  the  defendant. 

I  do  not  see  any  error  in  the  other  points  urged  by  the  defend- 
ant why  a  new  trial  should  be  had. 

For  the  reasons  given,  the  motion  for  a  new  trial  should  be  denied, 
and  judgment  ordered  for  the  plaintiff  on  the  verdict  with  costs. 

Present — LEARNED,  P.  J.,  and  BOARDMAN,  J.  BOCKES,  J., 
not  acting. 

New  trial  denied  and  judgment  ordered  on  the  verdict,  with  costs. 

As  to  the  duty  of  the  shipper  in  ordinary  cases  to  examine  the  contents 
of  a  receipt,  see  Kirkland  v.  Dins/more  (62  N.  Y.,  171).  —  [REP. 


JONAS  PRENTICE,  RESPONDENT,  v.  SOPHIA  WHITNEY 
AND  OTHERS,  EXECUTORS,  ETC.,  OF  GEORGE  WHITNEY, 
DECEASED,  APPELLANT. 

Executors — Notice  to  creditors,  to  present  claims — notice,  when  sufficient — 2  R.  S., 

88,  §§  84, 88. 

The  defendants,  executors,  in  pursuance  of  2  Revised  Statutes,  88,  section  34,  pub- 
lished a  notice  to  creditors  to  present  their  claims,  the  notice  being  in  the  usual 
form  except  that  the  word  "requested  "  was  used  instead  of  "  required."  Held, 
that  there  was  no  substantial  difference  between  the  words  "request"  and 
' '  require  "  as  the  latter  was  used  in  the  statute,  and  that  the  notice  was  sufficient. 

APPEAL  from  »  judgment  in  favor  of  the  plaintiff,  entered  on  the 
report  of  a  referee. 

Chapman  cfe  Martin*  for  the  plaintiff. 
Richards  <&  Sessions,  for  the  defendants. 

BOARDMAN,  J. : 

This  is  an  action  against  the  defendants  as  executors,  etc.,  of 
George  Whitney,  deceased,  to  recover  a  claim  existing  against  the 
testator  in  his  lifetime.  Pursuant  to  an  order  of  the  surrogate  the 


PRENTICE  v.  WHITNEY.  801 

THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 

defendants  published  a  notice  to  creditors  to  present  claims,  which 
was  duly  published  for  six  months.  Within  that  time  this  claim 
was  presented  to  defendants,  and  ultimately  rejected  by  them.  No 
offer  to  refer  was  made  by  either  party.  More  than  six  months 
after  the  rejection  of  plaintiff 's  claim  by  the  defendants  this  action 
was  brought.  The  answer  sets  up  the  short  statute  of  limitation. 
If  the  form  of  the  notice  to  creditors  be  sufficient,  the  plaintiff's 
action  is  barred  thereby.  The  notice  is  in  the  usual  form,  except 
that  the  word  "  requested "  is  used  where,  ordinarily,  the  word 
"  required  "  is  inserted  in  the  notice,  so  that  the  creditors  of  the 
estate  are  requested  to  exhibit  their  claims,  with  the  vouchers,  etc. 
The  plaintiff  claims,  and  the  referee  held,  that  such  notice  "  was 
not  such  a  compliance  with  the  statute  which  authorizes  executors 
and  administrators  to  insert  a  notice  'requiring'  all  persons  having 
claims  against  the  deceased  to  present  them,  as  to  bar  the  plaintiff 
from  maintaining  his  action,  although  he  did  not  commence  it 
within  six  months  after  the  rejection  of  his  claim  by  the  defend- 
ants." This  decision  is  alleged  to  be  erroneous,  and  if  se  the  judg- 
ment for  the  plaintiff  should  be  reversed. 

It  is  conceded  that  this  short  statute  of  limitation  is  penal  in  its 
character  (2  R.  S.,  88,  §§  34,  38),  and  should  be  strictly  construed. 
A  strict  construction,  however,  should  not  lead  to  a  destruction 
of  the  object  of  the  statute.  The  purpose  was  that  the  persons 
having  claims  against  the  estate  might  present  them,  so  as  to  facili- 
tate the  settlement  of  the  affairs  of  the  deceased.  To  facilitate 
such  object  the  surrogate  may,  at  or  after  a  certain  time,  order  a 
notice  given  to  the  creditors  by  publication,  once  a  week  for  six 
months,  in  a  paper  to  be  named,  to  present  their  claims.  That 
notice  need  not  use  the  precise  language  of  the  statute  if  it  convey 
the  same  meaning.  The  essentials  of  the  law  should  be  complied 
with.  The  form  is  nothing,  the  substance  every  thing. 

It  appears  to  me  that  there  is  no  reasonable  difference  in  the 
connection  between  the  words  "  request "  and  "  require."  Both 
words  have  the  same  origin.  Usage  has  given  to  them  somewhat 
different  meanings,  which,  however,  are  more  distinctions  in  inten- 
sity than  in  effect  or  substance.  The  latter  is  nearer  a  command 
than  the  former.  Yet  neither,  under  this  statute,  is  a  command  or 
any  thing  more  than  a  notice.  It  is  optional  with  the  creditor  tc 


302  SAUSER  v.  PEOPLE. 

THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 

present  his  claim  or  not,  whatever  the  words  used  in  the  notice. 
The  consequences  of  his  neglect  are  fixed  by  the  statute.  Notice 
is  given,  in  either  form,  to  present  claims.  That,  I  think,  is  suffi- 
cient. In  Hoyt  v.  Bonnett  (58  Barb.,  529),  the  notice  did  not  con- 
tain the  word  "  required,"  yet  its  sufficiency  was  not  questioned 
either  in  the  Supreme  Court  or  in  the  Court  of  Appeals.  (50  N. 
Y.,  538.) 

The  neglect  of  either  party  to  offer  to  refer  does  not  affect  the 
subject  under  consideration.  (National  Bank  of  FishkiU  v. 
Speight,  47  N.  Y.,  668.) 

The  conclusion  reached  in  the  discussion  of  the  subject  of  the 
sufficiency  of  the  notice,  renders  it  unnecessary  to  consider  the  other 
questions  raised  by  the  appellants. 

For  the  reason  that  the  notice  was  sufficient,  and  the  plaintiff's 
action  is  barred  by  neglect  to  prosecute  within  six  months  after  the 
rejection  of  the  plaintiff's  claim  by  the  defendants,  the  judgment 
must  be  reversed  and  a  new  trial  granted,  with  costs  to  abide  the 
event. 

Present  —  LEARNED,  P.  J.,  BOAEDMAN  and  BOOKEB,  J J. 

Judgment  reversed,  new  trial  granted  and  reference  discharged, 
costs  to  abide  the  event. 


CAEOLINE  SAUSER,  PLAINTIFF  IN  ERROR,  v.  THE  PEOPLE 
OF  THE  STATE  OF  NEW  YORK  DEFENDANT  IN  ERROR. 

Indictment — for  marrying  a  married  person  —  sufficiency  of  allegation*  as  to  prior 
marriage— 2  R.  S.  (Edm.  ed.\  710,  §  11. 

The  plaintiff  in  error,  an  unmarried  woman,  was  convicted  under  2  Revised  Statutes 
(Edm.  ed.),  710,  section  11,  of  unlawfully  marrying  one  Simons,  he  being  then  a 
married  man.  The  indictment  alleged  the  marriage,  and  further, "  she,  *  *  * 
at  the  time  of  marrying  *  *  *  the  said  Conrad  L.  Simons,  well  knowing 
that  the  said  Conrad  L.  Simons  was  then  and  there  the  lawful  husband  of  Anna 
M.  Simons,  and  bad  previously  been  lawfully  married  to  the  said  Anna  M. 
Simons."  It  contained  no  other  allegation  as  to  the  marriage  of  Conrad  L 
and  Anna  M.  Simons.  Held,  that  the  indictment  was  fatally  defective,  in  that 
it  did  not  sufficiently  allege  the  marriage  of  the  said  Conrad  L.  and  Anna  M 
Simons. 


SAUSER  v.  PEOPLE.  303 

THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 

WRIT  of  error  to  review  the  conviction  and  sentence  of  plaintiff 
in  error,  by  the  Albany  County  Sessions. 

The  plaintiff  in  error  was  indicted  and  convicted  for  a  violation 
of  2  Revised  Statutes  (Edm.  ed.),  710,  section  11,  in  marrying  one 
Conrad  L.  Simons,  who  was  at  the  time  a  married  man.  The  only 
allegation  in  the  indictment  as  to  the  former  marriage  of  Simons, 
was  the  following,  viz. : 

She,  the  said  Caroline  Sauser,  alias  Carline  Sauser,  then  and 
there,  at  the  time  of  marrying  and  taking  as  her  husband  the  said 
Conrad  L.  Simons,  well  knowing  that  the  said  Conrad  L.  Simons 
was  then  and  there  the  lawful  husband  of  one  Anna  M.  Simons, 
and  had  previously  been  lawfully  married  to  the  said  Anna  M. 
Simons ;  she,  the  said  Caroline  Sauser,  alias  Carline  Sauser,  then 
and  there,  at  the  time  of  marrying  and  taking  as  her  husband  the 
said  Conrad  L.  Simons  as  aforesaid,  well  knowing  that  the  said 
Anna  M.  Simons,  the  lawful  wife  of  the  said  Conrad  L.  Simons, 
was  alive  and  in  full  life. 

The  plaintiff  in  error  moved  in  arrest  of  judgment,  on  the 
ground  that  the  indictment  was .  fatally  defective,  in  that  it  failed 
to  allege  the  former  marriage  of  Simons. 

Reilly  (&  Hamilton,  for  plaintiff  in  error.  The  indictment  is 
defective  in  not  charging  positively  that  Simons  was  a  married  man, 
and  the  allegation  that  plaintiff  in  error  knew  him  to  be  such,  does 
not  meet  that  requirement.  (Reg.  v.  Pelham,  4  N".  Y.  Leg. 
Obs.,  399 ;  People  v.  Gates,  13  Wend.,  317 ;  State  v.  Haider,  2 
McCord,  379 ;  State  v.  Hathcock,  7  Iredell,  52 ;  Moore  v  Com- 
monwealth, 6  Mete.,  243.) 

John  M.  Bailey,  district  attorney,  for  the  people. 

BOABDMAN,  J.  I 

This  case  comes  before  us  upon  the  record  of  judgment,  no  bill  of 
•jxceptions  having  been  made.  The  plaintiff  in  error  was  convicted 
nnder  2  Revised  Statutes  (Edm.  ed.),  710,  section  11,  for  an  unlaw- 
ful marriage  with  one  Conrad  L.  Simons,  then  being  married, 
tnd  having  a  wife  living,  the  plaintiff  in  error  being  an  unmarried 


304  SAUSER  v.  PEOPLE. 

THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 

person,  and  knowing  that  Simons  was  married  and  had  a  wife  living 
at  the  time. 

There  are  three  counts  in  the  indictment,  each  of  which  charged 
the  marriage,  and  added :  she,  the  plaintiff  in  error,  at  the  time  of 
her  marriage  with  Simons,  well  knowing  that  said  Simons  was 
the  lawful  husband  of  one  Anna  M.  Simons,  and  had  been  previously 
lawfully  married  to  her ;  she,  said  Caroline,  at  the  time  of  said  mar- 
riage well  knowing  that  the  said  Anna  M.  Simons  was  alive  and 
in  full  life.  In  no  other  way  was  it  charged  in  the  indictment  that 
Conrad  L.  Simons  and  Anna  M.  Simons  were  at  the  time  of  such 
marriage  husband  and  wife,  and  then  living.  After  a  verdict  of 
guilty,  and  before  sentence,  counsel  for  plaintiff  in  error  "  moved 
in  arrest  of  judgment,  and  upon  the  indictment."  Counsel  were 
heard  in  support  of,  and  in  opposition  thereto,  and  the  motion  was 
denied.  After  sentence,  this  writ  of  error  was  allowed. 

The  plaintiff  in  error  now  insists  that  the  indictment  was  defect- 
ive, in  not  charging  that  Simons  was  a  married  man.  To  consti- 
tute the  crime  an  unmarried  person  must  knowingly  marry  the 
husband  or  wife  of  another,  etc.  It  must  be  charged  that  Conrad 
and  Anna  were,  at  the  time,  husband  and  wife ;  has  that  been 
done  ?  I  think  not.  The  marriage  between  plaintiff  in  error  and 
Conrad  is  sufficiently  alleged,  and  then  is  added  what  the  plaintiff 
in  error  well  knew  concerning  the  relations  between  Conrad  and 
Anna,  but  it  is  not  charged  as  a  fact  tL^t  Conrad  and  Anna  were 
husband  and  wife ;  it  may  be  inferred  from  the  knowledge  asserted 
to  have  been  possessed  by  plaintiff  in  error  that  they  were  married, 
but  that,  I  think  is  not  sufficient ;  whatever  is  necessary  to  be  proved 
must  be  stated  in  the  indictment  positively  and  with  certainty. 
(People  v.  Allen,  5  Den.,  76.)  What  the  plaintiff  in  error  knew, 
was  material,  but  the  relations  between  Conrad  and  Anna  were 
equally  material ;  the  former  is  fully  set  forth,  the  latter  were  not. 
In  Houser  v.  The  People  (46  Barb.,  33),  it  was  held  that  an  indict- 
ment under  section  10  of  the  same  article  of  Revised  Statutes, 
was  defective  in  not  alleging  the  apprehension  of  the  defendant  in 
the  county  in  which  he  was  indicted,  for  the  reason  that  it  was  an 
essential  fact  to  authorize  a  conviction.  To  the  same  effect  are 
Haxkvtis  v.  The  People  (16  N.  Y.,  344);  Regina  v.  Pelham  (4  K 
Y.  Leg.  Obs.,  399) ;  Enright  v.  People.  (21  How.,  383) ;  People  \ 


COVERT  v.  HUGHES.  805 

THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 

Gates  (13  Wend.,  317).  The  precision  and  certainty  required  in 
criminal  pleading,  will  not  admit  any  thing  to  be  taken  by  intend- 
ment.  (Com,,  v.  Moore,  6  Mete.,  243;  1  Wharton's  Criminal  Law, 
§§  285,  287,  367.)  The  indictment  must  show  what  offense 
has  been  committed  by  positive  averment ;  it  is  not,  sufficient  that 
it  appears  by  inference.  (Id.,  367 ;  Com.  v.  Griffin,  21  Pick.,  525  ; 
King  v.  Home,  Cowper,  683,  684.) 

For  the  reasons  stated,  I  think  the  indictment  was  fatally  defect- 
ive. The  defect  is  one  of  substance,  and  not  of  form  (Houser  v. 
Pe<,jJ,e,  ante) ;  hence  it  is  not  cured  by  2  Revised  Statutes,  728, 
section  52. 

The  grounds  upon  which  the  motion  in  arrest  was  made  are 
not  stated  in  the  record,  but  the  motion  appears  to  have  been 
argued  by  counsel  on  either  side ;  I  think  it  may  be  presumed  that 
the  same  ground  was  taken  in  the  court  below.  As  the  objection 
is  one  which  could  not  be  obviated,  no  harm  can  arise  from  a  neglect 
to  state  it  in  the  record. 

I  think  the  conviction  and  judgment  should  be  set  aside,  and  the 
prisoner  should  be  discharged. 

Present  —  LEARNED,  P.  J.,  BOARDMAN  and  BOOKES,  JJ. 
Judgment  reversed  and  prisoner  discharged. 


SYDNEY  COVERT  AND  JAMES  COVERT,  RESPONDENTS,  v. 
MAHAL  A  HUGHES  IMPLEADED  WITH  ANOTHER,  APPELLANT. 

Married  women  act — chapter  90  of  1860  —  when  separate  estate  of  married  woman 
chargeable  under —  debt  contracted  by  her  as  his  agent. 

Under  section  1  of  chapter  90  of  1860,  providing  that  the  property  of  any  married 
woman  shall  not  be  liable  for  the  debts  of  her  husband,  "  except  such  debts 
as  may  have  been  contracted  for  the  support  of  herself  or  her  children,  by  her 
as  his  agent, "  her  estate  is  liable  for  the  price  of  goods  purchased  by  her  as 
his  agent,  which  were  necessary  for  and  used  in  the  support  of  herself  and 
her  children. 

APPEAL  from  a  judgment  in  favor  of  the  plaintiff,  entered  upon 
the  trial  of  this  action  by  the  court  without  a  jury. 
HUN  — VOL.  VIII.         39 


806  COVERT  v.  HUGHES. 

THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 
H.  JBoardman  Smith,  for  appellant,  Mahala  Hughes. 

E.  P.  Hart,  for  the  respondents. 

BOARDMAN,  J.  : 

This  appeal  is  taken  by  Mahala  Hughes  alone,  she  being  the  wife 
of  John  Hughes,  from  the  judgment  which  charges  her  real  estate 
with  the  payment  of  $496.27,  originally  charged  by  the  plaintifla 
to  her  husband,  besides  costs  of  this  action. 

The  defendant  Mahala  Hughes  is  justly  indebted  to  the  plain 
tiffs  for  feed,  etc.,  purchased  by  defendant  of  plaintiffs,  and  fed  to 
her  cattle,  horses  and  other  stock  owned  by  her  and  constituting  a 
part  of  her  separate  estate.  She  is  also  indebted  to  plaintiffs  for 
insurance  premium  paid  by  them  upon  defendant's  house,  also  a 
part  of  her  separate  estate.  Both  these  amounts  were  contracted 
and  applied  for  the  benefit  of  Mahala's  separate  estate.  The 
decision  at  Special  Term  makes  the  amount  of  these  items  at  the 
date  of  the  decision,  including  interest,  $134.87.  Such  decision  is 
sustained  by  the  evidence.  Indeed,  the  facts  are  uncontradicted. 
This  sum  is  part  of  nearly  $800  originally  charged  by  plaintiffs  to 
the  defendant  John  Hughes,  and  being  for  a  balance  of  such  account 
for  which  the  defendants  gave  their  joint  and  several  promissory 
note,  in  the  usual  form,  to  the  plaintiffs.  Afterwards  the  plaintiffs 
sued  the  defendant  John  Hughes,  upon  such  note,  and  recovered 
judgment  for  the  sum  due  thereon,  with  a  small  balance  of  account 
which  had  accrued  after  the  date  of  such  note.  Such  judgment 
does  not  merge  any  claim  which  plaintiffs  may  have  against  Mahala 
by  reason  of  said  note,  or  of  the  indebtedness  thereby  secured. 
There  might  have  been  an  extinguishment  of  plaintiffs'  right  of 
action  upon  the  note  after  the  recovery  against  John,  if  it  had 
been  a  joint  note  only. 

It  is  also  found,  by  the  decision  at  Special  Term,  that  the  sum 
of  $300,  at  least,  of  said  account  of  $700  or  $800,  was  for  goods 
purchased  by  the  defendant  Mahala  as  the  agent  for  her  husband, 
and  that  such  goods  were  used  for  the  support  of  herself  and  her 
children.  The  learned  judge  then  holds  her  real  estate  charged 
with  that  portion  of  the  debt  so  contracted  for  the  support  of  herself 
and  her  children.  Such  conclusion  is  founded  upon  the  language 
of  the  act  of  1860  (chap.  90,  §  1),  whereby  the  property  of  a 


COVERT  v.  HUGHES.  307 

THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 

married  woman  shall  not  be  liable  for  her  husband's  debts,  "  except 
such  debts  as  may  have  been  contracted  for  the  support  of  herself 
or  her  children,  by  her  as  his  agent." 

There  is  abundant  evidence  to  justify  the  conclusion  that  the 
wife  purchased  of  plaintiffs  at  least  $300  in  value  of  the  goods,  as 
the  agent  of  her  husband,  and  that  such  goods  were  necessary  for, 
and  used  in  the  support  of  herself  and  her  children.  This  brings 
the  recovery  in  this  respect  within  the  strict  letter  of  the  law.  But 
it  is  claimed  that  this  provision  of  the  statute  is  a  palpable  error, 
and  that  the  legislature  never  intended  to  create  such  a  provision. 
This  view  is  sustained  by  the  New  York  Superior  Court.  (De  Mott 
v.  McMullen,  8  Abb.  Pr.  [N.  S.j,  335.)  In  the  opinion  of  FREED- 
MAN,  J.,  the  learned  judge  presents,  with  much  force  of  reasoning, 
the  inconsistency  of  such  a  provision  in  the  law  relating  to  the 
separate  estate  of  married  women,  whereby  the  wife,  in  certain 
events,  may  be  compelled  to  assume  the  duty  of  the  husband,  and 
support  herself  and  family  out  of  her  separate  estate.  He  con- 
cluded that  the  sentence  has  been  changed  in  its  meaning  by  the 
unintentional  transposition  of  the  pronouns  "  him "  and  "  her," 
and  should  read,  "  by  him  as  her  agent,"  instead  of  "  by  her  as  his 
agent." 

But  in  the  end  the  judge  declined  to  adopt  a  construction  which 
demands  a  reversal  of  the  very  words  used  by  the  legislature,  doubt- 
ing the  power,  not  less  than  the  propriety  of  such  an  act.  The 
case  is  then  disposed  of  upon  other  questions  presented.  What- 
ever is  said  in  that  case  upon  the  construction  of  the  statute  was 
obiter,  was  not  then  accepted  as  the  law  of  the  ease,  and  hence  is 
not  binding  upon  us. 

Entertaining  the  same  sense  of  the  power  and  propriety  of  such 
a  construction  as  is  now  contended  for  by  the  defendant  Mahala, 
we  shall  abide  by  the  plain  language  of  the  law,  leaving  the  legis- 
lature to  correct  the  error,  if  one  exists.  Nor  do  the  cases  cited 
by  defendants'  counsel  conflict  with  this  view.  In  Smith  v.  Allen 
(1  Lans  ,  101),  the  question  was  not  presented,  discussed,  or  decided. 
In  Baken  v.  Harder  (6  N.  Y.  S.  C.  [T.  &  0.],  440),  and  Weir  v. 
Groat  (11  S.  0.  N.  Y.  [4  Hun],  193),  the  wife  did  not  buy  as  the 
agent  of  her  husband.  In  each  case  she  bought  on  her  own  credit 
and  undertook  and  agreed  to  pay  for  the  goods  so  purchased. 


808  COVERT  y.  HUGHES. 

THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 

The  Special  Term  gave  judgment  for  the  plaintiffs  for  $496.27, 
being  for  such  portions  of  the  property  as  went  to  the  benefit  of 
the  defendant  Mahala's  separate  estate,  and  such  as  she  bought  for 
the  support  of  herself  and  children,  together  with  interest  thereon. 
We  have  examined  the  principles  upon  which  such  recovery  was 
had,  and  find  it  can  be  sustained.  The  findings  embrace  many 
other  facts  which  have  been  the  subject  of  criticism  by  defendants' 
counsel,  but  we  do  not  see  that  such  findings  were  material  to  the 
case  as  it  was  decided.  It  is  not,  therefore,  deemed  necessary  to 
consider  them  upon  this  appeal.  If  the  view  we  have  taken  be 
correct,  the  property  of  Mahala  Hughes,  defendant,  has  been 
properly  charged  with  the  payment  of  nearly  $500  out  of  a  total 
indebtedness,  including  interest,  of  nearly  $900. 

For  the  reasons  suggested,  the  judgment  should  be  affirmed, 
with  costs. 

LEARNED,  P.  J. : 

I  concur  in  the  result  of  this  opinion,  but  I  am  not  confident 
that  there  is  any  error  in  the  language  of  the  act  of  1860.  The  act 
declares  that  "  her  property  shall  not  be  liable  for  his  (her  husband's) 
debts,  except  such  debts,"  etc.  The  debts  excepted,  therefore,  by 
this  clause,  are  a  certain  class  of  his  debts.  It  would  be  idle  to  say 
that  her  property  shall  not  be  liable  for  his  debts,  except  for  certain 
of  her  own  debts. 

A  debt  contracted  by  a  married  woman,  as  her  husband's  agent, 
is  his  debt.  One  contracted  by  him,  as  her  agent,  is  her  debt. 

The  statute  exempts  her  property  from  liability,  for  his  debts, 
except  such  as  were  contracted  for  the  support  of  herself  or  her 
children  (not  his\  and  as  were  not  only  contracted  for  such  sup- 
port, but  actually  through  her  agency.  I  suppose  that  the  legisla- 
ture thought  it  would  be  unjust,  when  a  married  woman  should 
actually  purchase  food  and  clothing  for  herself  and  her  children, 
that  the  creditor  should  not  be  allowed  to  collect  the  debt  out  ot 
her  property,  because  the  purchases  had  been  made  (as  in  law  it 
probably  would  be)  as  the  agent  of  the  husband.  I  think  so  myself. 

Present  —  LEARNED,  P.  J.,  BOARDMAN  and  BOOKES,  JJ. 
Judgment  affirmed,  with  costs. 


MABIE  v.  JOHNSON.  3U9 

THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 


JOHN  M.  MABIE,  APPELLANT,  v.  DANIEL  JOHNSON, 

RESPONDENT. 

Promissory  note  —  duty  of  purcJia&er  —  notice,  sufficient  to  require  inquiry. 

In  an  action  by  the  plaintiff,  a  bonafide  purchaser,  before  maturity,  of  the  follow- 
ing note: 

GUILFORD,  Nov.  29,  1870. 

For  one  Hinckley  knitting  machine  warranted,  I  promise  to  pay  J.  H.  Well* 

or  bearer  thirty  dollars,  one  year  from  date  with  use. 

DANIEL  JOHNSON. 

the  defendant  offered  to  prove  a  parol  warranty  of  the  machine  and  breach 
thereof,  and  claimed  to  recoup  damages  therefor.  Held,  that  the  evidence  was 
inadmissible. 

APPEAL  from  a  judgment  of  a  county  judge,  reversing  a  judg- 
ment of  a  justice  of  the  peace  in  favor  of  the  plaintiff. 

Calvin  L.  Tefft^  for  the  appellant. 
Isaac  S.  Newton,  for  the  respondent. 

BOARDMAN,  J.  : 

This  action  was  brought  upon  a  negotiable  promissory  note  as 

follows : 

"  GUILFORD,  Nov.  29,  1870. 

"  For  one  Hinckley  knitting  machine  warranted  I  promise  to  pay 
J.  H.  Wells  or  bearer  thirty  dollars  one  year  from  date  with  use. 

"  DAN  IEL  JOHNSON. " 

This  note  was  transferred  for  value  to  the  plaintiff,  before  it 
became  due,  without  any  knowledge  of  the  transaction  out  of  which 
the  note  arose  except  what  is  contained  therein,  nor  did  the  plain- 
tiff have  any  notice  or  reason  to  suspect  that  the  defendant  had  any 
defense  to  said  note. 

Upon  the  trial  before  the  justice,  the  defendant  offered  to  prove 
a  parol  warranty  of  the  machine  in  certain  respects  with  a  view  of 
showing  a  breach  of  said  warranty,  and  recouping  the  damages. 
This  evidence  was  rejected.  The  County  Court  held  that  euch 
decision  was  erroneous  upon  the  ground  that  the  word  "  warranted  " 
m  the  note  was  sufficient  notice  of  the  defendant's  equities  to  put 
the  plaintiff  upon  inquiry  as  to  the  terms  of  the  warranty,  and 
that  he  took  the  note  subject  to  all  damages  sustained  by  the 


810  MABIE  v.  JOHNSON. 

Tin KI>  DKPA KTME.NT,  SEPTEMBER  TERM,  1876. 

defendant  for  a  breach  of  such  warranty ;  that  the  plaintiff  stood 
in  no  better  situation  in  this  respect  than  the  payee  would  have 
done,  had  he  brought  Muit  on  the  note. 

I  think  the  learned  county  judge  is  in  error  in  the  view  he  took 
of  the  case,  and  that  within  the  authorities  the  plaintiff  was  a  bona 
fide  holder  of  the  note  in  suit,  so  as  to  deprive  the  defendant  of  his 
defense.  The  progress  of  the  law  on  this  subject  is  given  in  1 
Parsons  on  Bills,  258,  et  seq.  The  result  of  the  English  decisions  is 
there  laid  down  to  be,  "  that  the  holder  of  negotiable  paper  does 
not  lose  his  rights  by  proof  that  he  took  the  paper  negligently." 
That  notice  of  facts  which  would  defeat  his  recovery  must  not  be 
ambiguous.  The  same  doctrine  is  maintained  in  the  American 
courts.  (  Welch  v.  Sage,  47  N.  Y.,  143  ;  Magee  v.  Badger,  34  id., 
247 ;  Belmont  Bank  v.  Hoge,  35  id.,  65 ;  Lord  v.  Wilkinson,  56 
Barb.,  593,  and  the  cases  cited.)  In  Magee  v.  Badger  (supra), 
PORTER,  J.,  says :  "  He,  the  purchaser,  is  not  bound,  at  his  peril  to 
be  upon  the  alert  for  circumstances  which  might  probably  excite 
the  suspicions  of  wary  vigilance.  He  does  not  owe  the  party  who 
puts  negotiable  paper  afloat  the  duty  of  active  inquiry  to  avert  the 
imputation  of  bad  faith."  In  Lord  v.  Wilkinson  (supra),  and 
Raphael  v.  Bank  of  England  (17  C.  B.,  161 ;  S.  C.,  33  Eng.  L.  and 
Eq.,  276),  actual  notice  of  the  theft  of  the  securities  was  given,  yet 
it  was  held  that  the  forgetting,  or  omitting  to  look  for  the  notice, 
was  not  evidence  of  mala  fides,  more  than  negligence  must  be 
proved  ;  fraud,  mala  fides,  must  be  shown. 

These  cases  seem  to  me  to  sustain  the  position  of  the  justice  upon 
the  trial.  The  words,  "  for  one  Hinckley  knitting  machine,  warran- 
ted," express  the  consideration  of  the  note.  Giving  to  the  words  the 
broadest  meaning  possible,  they  do  not  imply  that  there  has  been  a 
breach  of  the  warranty,  by  which  the  defendant  has  sustained 
damages.  They  cannot  be  construed  as  notice  to  the  purchaser,  of  a 
defense  to  the  note  in  the  hands  of  the  payee.  If  they  do,  it  must  be 
because  the  law  will  presume  a  breach  wherever  there  is  a  warranty. 
That  would  be  preposterous.  There  was  nothing,  therefore,  which 
showed,  or  tended  to  show,  to  the  purchaser,  or  even  to  excite  his 
suspicions,  that  any  defense  to  the  note  in  suit  existed,  when  he 
purchased  it.  He  is  therefore  entitled  to  protection  against  defend 
ant's  counter-claim. 


LOOMIS  v.  MOWRY.  311 

THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 

It  follows  that  the  judgment  of  the  County  Court  should  be 
reversed,  and  that  of  the  justice  be  affirmed,  with  costs. 

Present  —  LEARNED,  P.  J.,  BOARDMAN  and  BOOKES,  JJ. 

Judgment  of  County  Court  reversed,  and  that  of  justice  affirmed, 
with  costs. 


ELAM  LOOMIS,  APPELLANT,  v.  LE  EOT  MOWRY,  JOHN  T. 
MASTERS  AND  WARREN  BRIGGS,  RESPONDENTS. 

Complaint  —  cause  of  action  —  Presumption  —  that  the  face  of  a  note  is  its  value. 

Where  a  complaint  alleged  that  defendants  received  from  the  plaintiff  his  promia 
sory  note  for  $584,  indorsed  by  one  Sanborn,  upon  the  agreement  that  they 
would  return  the  same  before  maturity;  the  maturity  of  the  note;  a  failure  to 
return  the  same  and  a  sale  thereof  by  defendants  before  maturity,  held,  that  it 
stated  facts  sufficient  to  constitute  a  cause  of  action.  ' 

The  presumption  is,  that  the  value  of  a  promissory  note  is  the  face  thereof. 

APPEAL  from  an  order  dismissing  the  complaint,  herein,  on  the 
ground  that  it  did  not  state  facts  sufficient  to  constitute  a  cause 
of  action.  The  complaint  alleged  "  that  in  September,  1870,  said 
defendants  received  of  plaintiff  his  promissory  note  in  writing, 
dated  August  1st,  1870,  whereby  he  promised  to  pay  to  the  order 
of  J.  K.  Sanborn,  four  months  after  date,  $534,  at  the  First 
National  Bank  of  Waterbury,  and  which  said  note  was  indorsed  by 
said  J.  K.  Sanborn. 

That  said  defendants  received  said  note  upon  the  agreement,  that 
same  should  be  returned  to  plain  tiff  before  the  maturity  of  said  note. 

That  said  note  matured  and  became  payable  on  the  4th  day  of 
December,  1870,  and  before  the  commencement  of  this  action. 
That  said  defendants  have  not  returned  said  note  to  plaintiff,  but 
before  maturity  thereof  sold  and  disposed  of  said  note  at  the 
Washington  County  Bank. 

That  said  note  was  of  the  value  of  $534." 

Hughes  <&  Northup,  for  the  appellant. 
U.  G.  Paris,  for  the  respondents. 


812  LOOMIS  v.  MOWRY. 

THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 

LKAK.N  KI>,  P.  J.  : 

We  think  that  the  nonsuit  on  the  plaintiff's  opening  was  erron 
eons. 

Under  the  complaint  it  might  have  been  shown  that  the  plain 
tiff  had  delivered  his  negotiable  note,  with  Snnborn's  indorsement, 
to  the  defendants  on  their  agreement  to  return  it  to  him  before 
maturity ;  that  they  had  neglected  so  to  return  it,  and  had  placed 
it  out  of  their  power  so  to  do  by  disposing  of  it  before  maturity  to 
a  bona  fide  holder.  The  note  is  alleged  to  be  of  the  value  of  it* 
face.  The  defendants  insist  that  such  allegation  may  only  mean 
that  Sanborn's  indorsement  gave  it  that  value.  But,  even  if  this 
were  so,  it  might  be  that  the  plaintiff  was  bound  to  protect  San  born. 
And,  at  any  rate,  the  general  principle  is  settled,  that  the  value  of 
a  promissory  note  is  prima  facie  its  face.  (Potter  v.  Merchants1 
Bank,  28  N.  Y.,  641.) 

According  to  the  complaint,  which  must  have  been  taken  as 
admitted,  the  defendants  have  made  the  plaintiff  liable  to  an  action 
for  the  amount  of  that  note.  There  must  be  a  right  of  recovery 
for  that  wrongful  act,  even  though  it  should  be  possible  for  the 
defendants,  on  the  trial,  to  reduce  the  damages  from  the  prima 
facie  amount.  If  the  plaintiff  could  not  sue  the  defendant  until 
he  had  been  himself  sued  on  the  note,  his  right  of  action  might  be 
outlawed. 

BOOKES,  J. : 

The  complaint  was  dismissed  on  the  ground  that  it  did  not  state 
a  cause  of  action. 

Considered  as  an  action  on  contract,  the  complaint  states  a  valid 
agreement  between  the  parties,  performance  by  the  plaintiff,  and  a 
breach  on  the  part  of  the  defendants.  These  averments  give  a 
cause  of  action  ;  at  least  for  nominal  damages.  And  considered  as 
an  action  in  tort  for  the  misappropriation  of  a  note,  the  complaint 
avers  the  misappropriation,  and  with  the  other  facts  stated,  shows 
a  right  of  recovery.  It  is  urged  that  it  is  not  made  to  appear  that 
the  plaintiff  suffered  damage.  The  claim  is  for  the  non-return  or 
misappropriation  of  a  promissory  note. 

The  presumption  is,  that  the  note  is  of  the  value  of  the  sum 
promised  thereby  to  be  paid.  (28  N.  Y.,  641,  and  cases  there  cited.> 


HASTEN  v.  BLACKWELL.  313 

THIKD  DEPAKTMENT,  SEPTEMBER  TERM,  1876. 

We  are  of  the  opinion  that  sufficient  was  alleged  in  the  complaint 
to  put  the  case  on  its  merits,  without  here  determining  whether  it 
must  be  held  to  be  an  action  of  assumpsit  or  tort ;  although  we 
think  the  action  might  well  be  sustained,  on  the  facts  alleged,  as 
an  action  of  assumpsit. 

There  must  be  a  new  trial,  with  costs  to  abide  the  event. 

Present  —  LEARNED,  P.  J.,  BOOKES  and  BOARDMAN,  JJ. 
New  trial  granted,  costs  to  abide  event. 


JOSEPH  MASTEN,  KESPONDENT,  y.  TOBIAS  F.  BLACKWELL, 
JOHN  A.  GROSS  AND  HENRY  J.  BUDDINGTON. 

Joint  debtors — death  of  one,  during  pendency  of  action  —  revival  of  against  hit  repre- 
sentatives. 

In  an  action  against  A.  B.  and  C.,  copartners,  C.  died;  thereafter  judgment  by 
default  was  entered  against  A.  and  B.  Afterwards,  on  motion,  the  administra- 
tor of  C.  was  substituted  in  place  of  C.  as  sole  party  defendant.  Held,  error; 
that  in  such  case  the  action  against  the  administrator  should  be  a  new  one, 
arising  because  of  the  original  debt,  the  death  of  one  joint  debtor,  the  appoint- 
ment of  his  representatives  and  the  insolvency  of  the  surviving  joint  debtors, 
and  not  a  continuance  of  the  original  action  against  all  the  joint  debtors. 

APPEAL,  from  an  order  made  at  Special  Term,  reviving  an  action. 

The  defendants  were  copartners,  doing  business  under  the  firm 
name  of  Black  well,  Gross  &  Co. 

The  action  was  brought  by  the  plaintiff  against  the  firm,  to 
recover  $450,  claimed  to  be  due  him  from  the  firm,  for  rent  of  a 
house  and  lot,  alleged  to  have  been  leased  to  said  firm. 

The  summons  was  served  on  all  the  defendants.  Blackwell  and 
Gross  did  not  answer.  The  defendant  Buddington  put  in  a  sepa- 
rate answer. 

Pending  the  action,  and  on  the  7th  day  of  February,  1876,  the 
defendant  Buddington  died.  On  the  8th  day  of  April,  1876,  the 
plaintiff  entered  judgment  by  default,  against  Blackwell  and  Gross, 
HUN— VOL,  VIII.  40 


814  MASTEN  v.  BLACKWELL. 

Tin KD  DEPARTMENT,  SEPTEMBER  TERM,  1878. 

for  the  amount  of  the  rent  claimed  to  be  due,  with  interest  and 
costs. 

Ou  the  29th  day  of  May,  1876,  H.  Joseph  Buddington  was 
appointed  administrator  of,  etc.,  of  the  defendant  Henry  J.  Bud- 
dington, deceased,  by  the  surrogate  of  Ulster  county. 

The  attorneys  for  the  plaintiff,  upon  affidavit  of  Reuben  Bernard, 
one  of  his  attorneys,  dated  June  17,  1876,  and  upon  the  pleadings 
and  proceedings  in  the  action,  moved  at  Special  Term,  held  at 
Kingston,  on  the  1st  day  of  July,  1876,  notice  of  motion  having 
been  served  on  the  attorney  for  said  Henry  J.  Buddington,  for  leave 
to  revive  and  continue  the  action  in  the  name  of  H.  Joseph  Bud- 
dington, as  the  administrator,  of,  etc.,  of  said  H.  J.  Buddington, 
deceased,  in  the  place  and  stead  of  said  deceased,  as  one  of  the 
defendants.  The  administrator  appeared  and  opposed  the  motion. 
An  order  was  made  by  said  Special  Term,  allowing  the  plaintiff  to 
proceed  with  and  continue  the  action  against  said  administrator, 
and  to  serve  a  supplemental  or  amended  complaint,  changing  the 
title  of  the  action,  by  making  said  H.  Joseph  Buddington,  adminis- 
trator, etc.,  sole  defendant.  From  this  order  H.  Joseph  Budding- 
ton  appeals  to  this  court. 

J.  M.  Cooper,  for  the  appellants. 
Bernard  &  Fiero,  for  the  respondent. 

Per  Cwriam: 

When  an  action  is  pending  against  several  joint  debtors  and 
one  of  them  dies,  the  action  cannot,  with  accuracy,  be  said  to  sur- 
vive against  the  representatives  of  the  deceased  debtor.  The  cause 
of  action  which  may  arise  against  them  is  not  the  simple  common- 
law  action  on  contract,  which  was  originally  brought  against  all  the 
debtors.  But  it  is  an  action  of  equitable  character  which  arises 
on  several  facts :  the  original  debt ;  the  death  of  one  joint  debtor ; 
the  appointment  of  his  representatives,  and  the  insolvency  of  the 
surviving  joint  debtors.  This,  then,  is  a  new  action  ;  not  a  con- 
tinuance of  the  old. 

This  distinction  is  important.  It  shows  that  the  representatives 
of  the  deceased  are  entitled  to  have  the  claim,  thus  arising,  pre 


VAN  ORDER  t>.  VAN  ORDER.  315 

THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 

seined  to  them  for  allowance,  or  disallowance,  according  to  the 
statute.  They  should  not  be  brought  in  to  contest  the  old  action, 
in  which,  merely  as  representatives  of  the  deceased,  they  cannot  be 
liable. 

This  is  not  a  question  of  mere  practice,  but  of  legal  liability. 
Perhaps  it  would  be  a  wise  change  of  the  law  to  make  the  repre- 
sentatives of  a  deceased  joint  debtor,  in  all  cases,  jointly  liable 
with  the  surviving  joint  debtors.  But  that  is  for  the  consideration 
of  the  legislature. 

The  order  must  be  reversed,  with  ten  dollars  costs  and  disburse- 
ments. 

Present  —  LEARNED,  P.  J.,  BOOKES  and  BOARDMAN,  JJ. 
Order  reversed,  with  ten  dollars  costs  and  printing. 


HARRIET  VAN    ORDER,   RESPONDENT,  v.  JAMES  VAN. 
ORDER,   APPELLANT. 

Husband  and  wife  —  contracts  between  —  validity  of —  Condonation  of  adultery. 

A  wife  having  commenced  an  action  against  her  husband  for  divorce  on  account 
of  his  adultery,  entered  into  an  agreement  in  writing  with  him,  whereby  in 
consideration  of  a  sum  of  money  to  be  paid  to  her  by  him,  she  agreed  to  dis- 
continue the  action,  to  condone  the  adultery,  to  give  up  to  him  the  custody  of 
their  child  and  relinquish  her  right  of  dower  in  his  estate.  In  an  action 
brought  by  her  upon  such  agreement,  Jield,  that  a  wife  has  no  power  to  enter 
into  such  a  contract  with  her  husband,  and  that  the  agreement  to  pay  the 
money  was  void. 

A  promise  by  a  husband  to  pay  money  to  his  wife,  in  consideration  of  her  con- 
doning an  act  of  adultery  committed  by  him,  is  in  violation  of  the  rules  of 
law  and  public  policy  and  will  not  be  enforced  by  the  courts. 

APPEAL  from  a  judgment  in  favor  of  the  plaintiff,  entered  upon 
the  verdict  of  a  jury,  and  from  an  order  denying  a  motion  for  a 
jew  trial,  made  upon  the  minutes  of  the  justice  before  whom  the 
action  was  tried. 

In  1866  the  plaintiff  commenced  an  action  against  the  defendant 
for  a  divorce,  on  the  ground  of  his  adultery.  Subsequently  the 


816  VAN  ORDER  v.  VAN  ORDER. 

THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 

action  was  discontinued  in  pursuance  of  an  agreement  by  which  sh« 
agreed  to  condone  his  adultery,  to  give  to  him  the  care  and  custody 
of  their  child,  and  to  execute  any  deed  or  conveyance  proper  to 
convey  her  right  of  dower  in  any  real  estate  then  owned  or  there- 
after to  be  acquired  by  him,  in  consideration  that  he  should  pay  to 
her  the  sum  of  $600  in  annual  payments  of  fifty  dollars  each. 
Subsequently  the  defendant  having  procured  a  divorce  from  the 
plaintiff'  on  account  of  her  adultery,  refused  to  make  any  further 
payments  under  the  agreement,  and  thereafter  this  action  was 
brought  by  the  plaintiff  to  recover  such  payments. 

Marcus  Lyon,  for  the  appellant. 

J.  De  MotU  Smith,  for  the  respondent. 

LEARNED,  P.  J. : 

This  is  an  action  on  an  agreement  made  during  coverture 
between  husband  and  wife,  by  which  he  agreed  to  pay  her  a  cer- 
tain sum  of  money.  The  consideration  is  the  discontinuance  of  an 
action  brought  by  her  against  him  for  alleged  adultery,  the  condo- 
nation of  such  adultery ;  an  agreement  that  he  shall  have  the  cus- 
tody of  a  child  of  the  parties,  and  that  she  will  relinquish  her 
dower  and  claims  on  his  estate. 

There  are  two  defenses :  first,  that  the  agreement  is  void ;  sec- 
ond, that  the  defendant  has  been  divorced  from  the  plaintiff  for 
adultery,  committed  subsequently  to  the  agreement. 

The  so-called  married  woman's  acts  have  not  removed  the  gen- 
eral disability  of  married  women.  (Perkins  v.  Perkins,  62  Barb., 
531.)  A  contract  like  this  was  void  at  common  law.  (Beach  v. 
Beach,  2  Hill,  260 ;  1  Black.  Cora.,  442.) 

The  plaintiff  cites  cases  to  show  that  a  husband  may  now  enter  into 
such  an  executory  contract  with  his  wife.  But  they  do  not  sustain 
that  position.  Rawson  v.  Perm.  R.  R.  Co.  (48  N.  Y.,  212),  only 
held  that  paraphernalia,  gifts  of  the  husband,  were  now  the  prop- 
erty of  the  wife;  Whitney  v.  Whitney  (49  Barb.,  319),  that  the 
wife  could  sue  her  husband  for  her  property  wrongfully  converted  ; 
Adams  v.  Curtis  (4  Lans.,  165),  that  she  might  sue  a  firm  for  her 
lervices,  although  her  husband  was  one  of  the  partners ;  Wright  v 


VILLAGE  OF  DEPOSIT  v.  DEVEREUX.  317 

THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 

Wright  (54  N.  Y.,  437),  that  a  note  made  before  marriage,  in  con- 
sideration thereof,  was  valid  after  marriage. 

The  present  contract  does  not  purport  to  concern  the  separate 
property  of  the  wife.  As  an  agreement  to  release  dower  it  is 
invalid.  (Townsend  v.  Townsend,  2  Sand.  Sup.  Ct.,  711;  Winans 
v.  Peebles,  32  N".  Y.,  423.)  It  is  not  even  sealed  or  acknowledged. 
The  consent  that  the  defendant  should  have  the  custody  of  the 
child  is  no  consideration,  and  to  enforce  a  promise  by  a  husband 
":>  pay  money  to  his  wife,  in  consideration  of  the  condonation  ol 
.  dultery,  would,  I  think,  be  a  violation  of  rules  of  law,  and  princi- 
ples of  public  policy.  (Freethy  v.  Freethy,  42  Barb.,  641 ;  Gould 
v.  Gould,  29  How.,  441 ;  Longendyke  v.  Longendyke,  44  Barb.,  366.) 

The  plaintiff  insists  that  this  is  not  an  agreement  for  a  separa- 
tion. It  is  therefore  unnecessary  to  consider  whether  it  is  invalid, 
when  viewed  in  that  light.  Nor  need  we  discuss  the  effect  of  the 
subsequent  divorce. 

We  think  the  agreement  to  pay  the  money  was  void,  and  the 
judgment  and  order  should  be  reversed  and  a  new  trial  granted, 
costs  to  abide  the  event. 

Present  —  LEABNED,  P.  J.,  BOCKES  and  BOARDMAN,  JJ. 

Judgment  and  order  reversed,  new  trial  granted,  costs  to  abide 
event. 


VILLAGE  OF  DEPOSIT,  PLAINTIFF,  v.  ALVIN  DEVEREUX, 
AS  SUPERVISOR  OF  THE  TOWN  OF  SANFORD,  BROOME  COUNTY, 
DEFENDANT. 

Legislative  actt — special  and  general — construction  of —  Chap.  444  of  1874  —  vittagt 
of  Deposit  —  chap.  830  of  1873. 

That  provision  of  the  charter  of  the  village  of  Deposit  which  provides  for  the 
payment  of  all  sums  received  for  licenses  into  the  treasury  of  the  village,  is 
not  repealed  by  chapter  444  of  1874,  creating  boards  of  excise  for  the  several 
counties  of  the  State. 

CONTROVERSY  submitted  without  action,  under  section  372  of  the 
Code. 

At  the  annual  town  meeting  of  the  town  of  Sanford  in  1875, 


318  VILLAGE  OF  DEPOSIT  w.  DEVEHEUX. 


THIRD  DEPARTMENT,  SEPTEMBEB  TERM,  1876. 


three  commissioners  of  excise  were  elected.  They  granted  certain 
licenses  to  persons  within  that  part  of  the  village  of  Deposit  which 
lies  within  the  town  of  Sanford,  and  received  therefor  $340.  Thia 
money  they  paid  to  the  defendant,  the  supervisor  of  that  town,  on 
the  first  day  of  March,  1876. 

The  plaintiff  claimed  this  sum  under  a  provision  contained  in 
its  amended  charter,  chapter  320  of  1873,  which  provides  that  all 
sums  received  for  licenses  should  be  paid  into  the  treasury  of  the 
village,  and  made  a  demand  therefor  of  the  defendant,  who 
refused  to  pay  it  over,  on  the  ground  that  the  provision  requiring 
him  so  to  do  was  repealed  by  chapter  444  of  1874.  It  has  not 
been  disposed  of  by  the  town  board  of  that  town. 

Alex.  Gumming  and  T.  &  A.  More,  for  the  plaintiff. 
J3.  N.  Loomis,  for  the  defendant. 

LEARNED,  P.  J. : 

In  the  case  of  the  Village  of  Deposit  v.  Vail  (12  S.  C.  N.  Y., 
310),  this  court  held  that  the  provisions  of  the  charter  of  this 
village  (Sess.  Laws,  1873,  chap.  330)  touching  excise  matters,  were 
n-»t  repealed,  by  implication,  under  the  act  of  1873,  chapter  820. 
The  present  question  is,  whether  those  provisions  are  repealed  by 
chapter  444  of  the  Session  Laws  of  1874,  so  far  as  relates  to  the 
disposition  of  the  excise  moneys. 

The  third  section  of  this  act  is  in  these  words  :  "  Nothing  in  this 
act  shall  affect  the  provisions  of  any  special  act,  so  far  as  the  same 
provides  for  any  special  disposition  of  excise  moneys  and  tines.'' 
The  village  charter  provides :  "  Sums  received  for  licenses,  and 
fines  and  penalties  collected,  shall  be  paid  into  the  treasury  for  the 
use  of  the  village."  The  village  charter  is  a  "  special  act."  The 
clause  cited,  therefore,  contains  "  a  special  disposition  of  the  excise 
moneys  and  fines."  The  law  of  1874  does  not  exempt  all  the  pro- 
visions of  any  special  act,  but  only  those  which  provide  for  the 
disposition  of  the  excise  moneys  and  fines. 

As  to  the  composition  of  the  board  of  excise  it  may  therefore 
lie  that  the  provisions  of  the  charter  are  superseded. 

Considering  this  express  provision  of  the  Laws  of  1874,  and  the 
general  principle  that  a  special  act  is  not  to  be  repealed  by  the 


QUAIN  v.  RUSSELL.  319 

THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 

implied  force  of  general  laws,  I  think  that  the  plaintiffs  are  entitled 
to  the  money.  This  view  is  in  harmony,  also,  with  the  case  of 
Village  of  Gloversville  v.  Howell,  decided  by  this  court  and 
reported  7  Hun,  345. 

Judgment  must  be  entered  for  the  plaintiff. 

Present  —  LEARNED,  P.  J.,  BOOKES  and  BOAKDMAN,  JJ. 
Judgment  ordered  for  plaintiff. 


MARY    QUAIN,    APPELLANT,    v.    MOSES    RUSSELL 
MORTIMER  RUSSELL,  RESPONDENTS. 

Oml  damage  act —  Chap.  646  of  1873  —  when  came  of  action  exists  under. 

It  is  not  essential  to  the  existence  of  a  cause  of  action,  under  chapter  64(>  of  1873, 
against  the  vendor  of  liquors,  that  an  action  should  also  be  maintainable 
against  the  intoxicated  person;  it  is  sufficient  if  the  wife  has  been  injured  ia 
her  means  of  support  through  the  intoxication  of  the  husband.* 

MOTION  for  new  trial  by  plaintiff,  after  a  dismissal  of  the  coin 
plaint  at  the  Circuit,  upon  the  ground  that  it  did  not  state  facta 
sufficient  to  constitute  a  cause  of  action.  The  exceptions  were 
ordered  heard  in  the  first  instance  at  the  General  Term. 

This  action  was  brought  to  recover  damages,  under  and  by  virtue 
of  the  provisions  of  chapter  646  of  the  Laws  of  1873,  entitled 
"  An  act  to  suppress  intemperance,  pauperism  and  crime,"  com- 
monly known  as  the  "  civil  damage  act. "  The  complaint  showed 
that  the  plaintiff  was  the  wife  of  James  Quain,  and  was  his  wife, 
and  was  living  with  him  as  his  wife  and  depending  on  him  for 
her  support  at  the  times  of  the  injuries  complained  of.  The  defend- 
ant Moses  Russell  was  a  hotel-keeper,  and  rented  and  kept  a 
building  for  the  purpose  of  keeping  a  hotel  and  selling  liquor 
therein.  The  defendant  Mortimer  Russell  was  the  owner  of  such 
building,  and  rented  the  same  to  the  defendant  Moses  Russell  for 
the  purpose  of  a  hotel,  and  had  knowledge  of  the  sale  of  intoxi- 
cating liquors  therein.  The  defendant  Moses  Russell  sold  and 
delivered  intoxicating  liquors  to  said  James  Quain,  the  plaintiff's 
*  See  ante,  p.  151,  note.— [Rap. 


320  QUAIN  v.  RUSSELL. 


THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 

said  husband,  in  said  building.  The  said  James  Quain  drank  the 
said  liquors  in  said  building,  and  became  intoxicated,  and  spent  hia 
money  upon  which  the  plaintiff  relied  for  her  support,  and  by 
reason  of  his  intoxication  the  plaintiff  was  injured  in  her  means  of 
support. 

Burke  &  Kilburn,  fo    the  plaintiff. 
Albert  Hdbbs,  for  the  defendants. 

BOABDMAN,  J. : 

If  the  complaint  were  technically  defective  the  more  appropriate 
treatment  would  have  been  to  have  moved  to  make  it  more 
definite  and  certain,  or  to  have  allowed  an  amendment  of  course  upon 
the  trial.  When  the  defendant  answers,  he  impliedly  admits  the 
t-ufficiency  of  the  complaint  as  to  mere  matters  of  form,  and  when 
the  issues  come  down  to  trial  before  the  jury,  objections  to  the 
sufficiency  in  mere  matters  of  form  will  be  regarded  with  slight 
favor.  But  upon  authority  I  think  the  complaint  in  the  case  was 
sufficient.  (Peterson  v.  Knoble,  35  Wis.,  80 ;  Schneider  v.  Hosier, 
21  Ohio,  98.) 

I  suspect,  however,  that  the  complaint  was  dismissed  upon  the 
broad  ground  that  no  right  of  action  can  exist  against  the  vendor 
of  liquors  except  in  cases  where  it  would  also  lie  against  the  intox- 
icated person.  The  learned  judge  was  inevitably  led  to  such  deci- 
sion by  the  unfortunate  manner  in  which  Hayes  v.  Phelan,  owing 
to  an  omission  in  the  list  of  decisions  sent  to  the  reporter,  was 
reported  in  4  Hun,  733.  As  that  report  is  corrected  in  5  Hun, 
335,  it  will  be  seen  that  no  such  principle  was  adopted  by  the  court. 
Apart  from  such  error,  there  appears  to  be  no  such  doctrine  sanc- 
tioned by  authority.  In  Baker  v.  Pope  (5  S.  0.  R.,  102),  the  con- 
trary view  is  taken,  though  it  is  obiter.  In  the  leading  case  of 
Schneider  v.  Hosier  (supra),  it  is  distinctly  held  that  the  loss 
of  means  of  support  by  the  wife,  through  the  intoxication  of  the 
husband,  gives  to  the  wife  a  cause  of  action  against  the  vendor  of 
the  liquor.  The  exercise  of  legislative  power  in  such  respects  ia 
very  ably  considered  by  DIXON,  C.  J.,  in  State  ex  rel.  HenshaU 
v.  Luddington  (33  Wis.,  107). 


QUAIN  v.  RUSSELL.  321 

THIRD  DEPARTMENT,  SEPTEMBER  TERM,  187<k 

Although  a  new  trial  was  granted  the  defendant  in  Duftois  v. 
Miller  (5  Hun,  332),  it  was  not  suggested  that  a  cause  of  action 
founded  on  loss  of  support  could  not  be  sustained.  The  precise 
question  has  not,  I  think,  been  decided  by  any  General  Term 
in  this  State  unless  in  Jackson  v.  Brookins  (5  Hun,  530).  But 
I  think  I  am  justified  by  the  language  of  the  statute,  and  the 
decisions  and  opinions  of  judges  and  courts  in  this  State  and  other 
States,  in  holding  that  a  cause  of  action  was  stated  in  the  complaint. 

It  follows  that  the  dismissal  of  such  complaint  was  error,  and  a 
new  trial  should  be  granted,  with  costs  to  abide  the  event. 

LEARNED,  P.  J.  (dissenting) : 

The  constitutionality  of  this  statute  is  not  an  open  question  in 
this  court.  (Baker  v.  Pope,  9  S.  C.  N.  Y.  [2  Hun],  556.) 

Does  the  present  case  come  within  the  statute  ?  This  does  not 
give  a  right  of  action  to  a  wife,  as  such.  It  gives  it  to  "  every 
husband,  wife,"  etc.,  "  or  other  person  who  shall  be  injured"  etc. 
The  test,  then,  whether  the  action  can  be  maintained,  must  be 
whether  the  plaintiff  has  been  injured. 

The  language  of  the  statute  is,  "  injured  in  person  or  property, 
or  means  of  support."  I  suppose  that  "  injured  "  implies  injury 
in  the  legal  sense  of  the  word,  and  in  no  other.  If  a  person  were, 
by  virtue  of  this  statute,  to  sue  the  vendor  of  liquor  to  recover 
damages  for  injuries  done  by  the  intoxicated  purchaser  to  prop- 
erty, I  suppose  the  plaintiff  would  have  to  show  ownership  of  the 
property,  and  such  a  wrongful  act  done  to  it  as  would,  without  the 
statute,  create  a  cause  of  action  against  some  one.  Otherwise, 
the  plaintiff  in  such  an  action  could  not  be  said  to  have  been  injured. 
And  hence  he  would  have  no  right  of  action  against  the  immediate 
perpetrator  of  the  supposed  act,  and  none  against  the  vendor  of  the 
liquor. 

The  question  then  arises,  has  a  wife  such  an  interest  in  her  hus- 
band's ability  to  work,  that  she  can  recover  damages  for  an  act 
which  incapacitates  him  from  working  ?  If  a  man  assaults  another, 
and  so  injures  him  as  to  prevent  him  from  performing  the  ordinary 
work  by  which  he  is  accustomed  to  support  his  wife,  can  she 
maintain  an  action  against  the  wrong-doer,  on  the  ground  that  she 
is  "injured  in  means  of  support?"  I  think  not.  She  does  not 
HUN— VOL.  VIII.  41 


322  ANDREWS  v.  BETTS. 

THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 

own  her  husband's  wages  after  they  are  earned,  nor  his  capacity  to 
earn  them  before.  In  like  manner,  it  seems  to  me,  that,  where  the 
husband's  inability  to  work  has  been  caused  by  intoxication,  the 
wife  is  no  more,  in  a  legal  sense,  injured  in  means  of  support, 
than  she  is  so  injured  where  the  inability  has  been  caused  by 
violence. 

If  the  plaintiff's  husband  had  earned  a  sum  of  money  by  his 
wages,  and  it  had  been  taken  from  him,  his  wife  could  not  have 
sued  for  it.  The  loss  might  have  occasioned  her  much  suffering, 
but  not  a  legal  injury.  If  it  had  been  taken  from  him  by  an 
intoxicated  person,  could  she  recover,  under  this  statute,  damages 
against  the  vendor  of  the  liquor  ? 

The  wife  has,  I  think,  no  legal  interest  in  the  earnings  of  her 
husband.  Hence,  to  disable  him  from  the  power  of  working, 
inflicts  no  legal  injury  on  her. 

And  it  seems  to  me  that  this  statute  makes  no  change  in  the  law 
in  this  respect,  but  that  it  only  makes  the  vendor  of  liquor  (the 
remote  cause)  liable  for  damages  on  account  of  those  acts  for 
which,  without  the  statute,  the  intoxicated  person  (the  immediate 
cause)  would  alone  have  been  liable. 

Present  —  LEARNED,  P.  J.,  BOARDMAN  and  BOOKES,  JJ. 
New  trial  granted,  costs  to  abide  the  event. 


WILLIAM  ANDREWS,    ADMINISTRATOR,  ETC.,    RESPONDENT,  v. 
SILAS  BETTS  AND  OTHERS,  APPELLANTS. 

Sale  of  vessel,  owned  by  tenants  in  common  —  power  of  Supreme   Court  to  direct  — 
Jurisdiction  of  admiralty  courts  —  Partition  of  personal  property. 

Where  a  vessel  is  owned,  in  unequal  proportions,  by  several  persons,  who  can- 
not agree  upon  the  sale  or  for  the  working  of  it,  the  Supreme  Court  of  this 
State  has  jurisdictioa  over  an  action  brought  by  one  owner  to  procure  the 
appointment  of  a  receiver,  the  sale  of  the  vessel,  and  the  division  of  the  pro- 
ceeds among  the  owners  thereof. 

Stmble,  that  the  admiralty  courts  do  not  exercise  jurisdiction  to  order  the  sale  of 
a  vessel  owned  by  tenants  in  common,  except  in  those  cases  in  which  the 
opposing  interests  are  equal. 


ANDREWS  v.  BEITS.  323 

THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 

If  they  have  jurisdiction  in  cases  where  the  interests  are  unequal,  it  is  not 
exclusive  but  concurrent  with  that  of  the  common-law  courts. 

A  court  of  equity  has  jurisdiction  over  an  action,  brought  to  secure  a  partition 
of  personal  property  between  tenants  in  common  thereof. 

APPEAL  from  an  order  overruling  the  defendants'  demurrer  to 
plaintiffs  complaint  in  this  action. 

8.  Hand,  for  the  appellant. 
Esek  Cowen,  for  the  respondents. 

BOAKDMAN,  J. : 

Plaintiff  and  defendants  are  owners,  in  unequal  portions,  of  a 
propeller,  which  is  being  used  and  run  by  the  defendants  upon  the 
Hudson  river  under  an  enrollment  and  license  under  the  acts  of 
Congress.  The  parties  are  unable  to  agree  upon  the  sale,  or  for 
the  working  or  operation  of  the  same.  Plaintiff  also  claims  by 
his  complaint,  that  the  only  way  in  which  he  can  obtain  his  rights, 
as  against  the  defendants,  is  by  a  sale  of  the  vessel.  Under  such 
circumstances  this  action  in  equity  is  brought,  whereby,  among 
other  things,  the  plaintiff  asks  that  a  receiver  of  said  vessel  may 
be  appointed  by  this  court,  and  that  the  same  may  be  sold,  and  the 
proceeds  divided  among  the  owners  according  to  their  respective 
interests.  To  such  complaint  the  defendants  demur  on  the  grounds : 
first,  that  this  court  has  no  jurisdiction  of  the  cause  of  action  ;  and 
second,  that  the  complaint  does  not  state  a  cause  of  action. 

Upon  the  hearing  at  Special  Term,  such  demurrer  was  over- 
ruled, and  the  defendants  now  appeal  to  the  General  Term. 

As  to  jurisdiction,  it  is  claimed  by  defendants,  that  if  the  powei 
to  sell  exists  at  all,  it  is  vested  by  acts  of  Congress  in  the  admi 
rally  courts  which  have  exclusive  jurisdiction.  The  authorities 
which  I  have  been  able  to  examine  indicate  beyond  doubt,  that 
admiralty  courts  do  not  exercise  jurisdiction  to  sell  vessels  owned 
by  tenants  in  common,  held  in  unequal  shares,  upon  their  dispute 
as  to  the  employment  of  the  vessel.  In  such  case  the  majority  of 
the  owners  control  the  use  of  the  vessel,  and  admiralty  courts  only 
take  jurisdiction  to  compel  security  to  be  given  to  the  minority  of 
the  owners,  for  the  safe  return  of  the  vessel.  If  the  majority 
refuse  to  use  the  vessel,  the  court  will  give  its  use  to  the  minority 


324  ANDREWS  v.  BETTS. 

THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 

upon  the  same  conditions.  (Steamboat  Orleans  v.  Phoebw,  11 
Pet.,  181 ;  Grant  v.  Pottlon,  20  How.  [U.  S.]  Rep.,  168 ;  Ousten  v. 
Hcbden.)  1  Wilson  Rep.,  101 ;  3  Kent  Com.,  152 ;  Tanno  v. 
The  Beteina,  5  Am.  Law  Reg.,  406.) 

But  when  the  opposing  interests  are  equal  so  that  no  majority 
can  control  the  conduct  of  the  vessel,  admiralty  courts  have 
ordered  the  sale,  and  a  distribution  of  the  proceeds.  Such  action 
is  apparently  taken  to  secure  the  employment  of  the  vessel  in  the 
general  interest  of  commerce,  and  not  out  of  any  consideration  for 
the  controversy  about  the  title.  (Story  on  Part.,  437-439 ;  Davu 
v.  The  Seneca,  18  Am.  Jurist,  486,  etc.)  I  find  no  other  instance 
in  which  admiralty  courts  have  ordered  a  sale  of  vessels,  on  account 
of  disputes  among  the  owners.  The  case  of  Skrine  v.  Sloop  Hope 
(Bee  Adm.  R.,  2),  is  not  accessible  to  me.  But  assuming  that  it 
declares  the  jurisdiction  of  admiralty  to  sell  in  both  classes  of 
cases  alluded  to,  I  think  I  am  justified  in  saying  that  it  is  at  vari- 
ance with  the  elementary  authorities  and  reported  cases.  (Ousten 
v.  Hebden,  1  Wils.,  101 ;  Story  on  Partner.,  §§  438,  439 ;  Strelly  v. 
Winson,  1  Yernon  [m.  p.],  297 ;  3  Kent  Com.,  153,  note  6 ;  Tunno  v. 
Betema,  5  Am.  Law  Reg.,  406,  where  its  authority  is  questioned ; 
1  Pars,  on  Partner.,  560.)  The  case  of  Tunno  v.  The  Betsina  (ante), 
contains  a  very  interesting  review  of  the  subject. 

I  can  see  no  reason  why  admiralty  courts  ought  not  to  possess 
and  exercise  jurisdiction  to  order  a  sale  in  case  of  disagreement 
between  owners,  irrespective  of  their  shares.  Such  a  power  exer- 
cised in  the  discretion  of  the  court,  could  scarcely  fail  to  subserve 
the  interests  of  the  well  disposed  owners,  and  defeat  the  malice  or 
stupidity  of  the  evil  disposed  owners. 

But  if  it  should  be  conceded  that  admiralty  courts  possessed 
such  power,  is  their  jurisdiction  exclusive?  By  section  563,  subdi- 
vision 8,  United  States  revenue  laws,  District  Courts  have  exclusive 
jurisdiction  of  all  civil  causes  of  admiralty  and  maritime  jurisdic- 
tion, "saving  to  suitors  in  all  cases  the  right  of  a  common-law 
remedy  when  the  common  law  is  competent  to  give  it." 

By  this  exception  admiralty  and  common-law  remedies  may  be  con- 
current in  some  cases,  and  if  so  the  right  to  the  common-law  remedy 
is  not  taken  away.  The  mode  of  proceeding  would  be  very  differ- 
ent, but  the  end  is  the  same.  In  admiralty  the  proceeding  is 


ANDREWS  v.  BETTS.  325 

THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 

against  the  vessel  only ;  at  common  law  the  action  is  between  the 
owners  of  the  vessel,  touching  their  ownership,  or  liability  as 
owners  of  the  vessel.  The  judgment  or  decree  at  common  law 
affects  only  their  interest  in  or  title  to  the  vessel.  Admiralty 
seizes  the  vessel  and  proceeds  against  it  by  name,  to  enforce  mari- 
time liens  growing  out  of  maritime  contracts  or  torts,  and  in  such 
cases  only  is  its  jurisdiction  exclusive.  (The  Belfast,  7  Wall.,  624, 
644 ;  In  re  Josephine,  39  N".  Y.,  19.)  But  when  vessels  are  within 
the  territorial  jurisdiction  of  the  States,  they  are  not  exempt  from 
the  operations  of  the  State  laws  for  the  collection  of  claims  or  the 
creation  or  enforcement  of  liens  not  founded  upon  maritime  con- 
tracts or  torts.  (Brookman  v.  Hamill,  43  N.  Y.,  557.)  This  doc- 
trine is  well  illustrated  in  the  case  of  mortgages  on  vessels,  which 
admiralty  coui-r*  will  not  undertake  to  enforce  (Bogart  v.  Steam- 
boat John  Jay.  '  How.  [U.  S.]  R.,  399),  by  reason  of  want  of 
jurisdiction. 

No  reason  is  seen,  therefore,  why  equity  may  not  entertain  juris- 
diction for  the  partition,  by  sale  and  distribution  of  the  proceeds 
of  the  vessel  in  controversy,  if  partition  of  personal  property  may 
be  sought  in  equity. 

This  court,  in  the  seventh  district,  has  decided  that  very  question 
in  Tinney  v.  Stebbins  (28  Barb.,  290).  Justice  E.  D.  SMITH  in 
that  case  says:  "  A  court  of  equity  is  competent  to  give  relief  in 
such  cases  by  decreeing  the  partition  of  the  property,  or  a  sale 
thereof  where  partition  is  impracticable,  and  a  division  of  the  pro- 
ceeds." Citing  Smith  v.  Smith  (4  Rand.,  95) ;  Kelsey  v.  Clay 
(4  Bibb,  441).  The  case  of  Tinney  v.  Stebbins  was  an  action  in 
equity  for  the  partition  of  personal  property  held  by  the  parties  in 
common.  In  Tripp  v.  Riley  (15  Barb.,  334),  Mr.  Justice  JOHN- 
SON says,  tenants  in  common  of  personal  property  "  were  com- 
pelled to  resort  to  equity,  when  they  could  not  agree  upon  severance 
of  their  respective  interests,  and  the  common  property  was  not  in 
its  nature  severable."  This  language  is  cited  with  approval  by 
MULLETT,  J.,  in  Fobes  v.  Shallock  (22  Barb.,  570).  The  same  idea 
is  conveyed  by  the  opinion  of  Judge  PRINDLB  in  Lobdell  v.  StoweU 
(37  How.  Pr.,  88;  affirmed  by  the  General  Term  of  the  sixth  dis- 
trict, and  approved  by  JOHNSON,  J.,  in  note  to  Channon  v.  Lush,  2 
Lans.,  211,  216).  Only  cne  of  these  cases  was  an  action  in  equity 


ANDREWS  v.  BETTS. 


THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 

for  partition,  and  hence  the  language  quoted  was  not  necessary  to 
the  decision  of  such  cases.  They  indicate,  however,  the  sentiment 
and  feeling  of  the  courts. 

By  the  civil  law  the  same  result  is  attained  under  an  implied 
promise  that  the  property  held  in  common  shall  be  sold,  in  case  the 
owners  cannot  agree  as  to  its  management  or  disposition.  (Just. 
Inst.,  lib.  3,  tit.  27,  3.)  So  when  liquids  were  mixed  by  consent 
or  accident,  the  product  became  common  property,  termed  confmi.o, 
and  any  owner  could  recover  his  own  share  by  bringing  an  action, 
communi  dividend*).  (Domat,  bk.  2,  tit.  5  ;  Institutes,  ante.} 

Cinder  the  authority  of  Tinney  v.  titebbins  (ante),  which  is 
directly  in  point,  we  must  hold  that  an  action  for  the  partition  of 
personal  property  may  be  brought  in  equity.  The  question  has 
received  little  attention  by  the  courts,  but  it  is  of  very  great  con- 
sequence. Its  importance  will  demand  the  review  of  the  decision 
of  this  court  by  the  Court  of  Appeals. 

We  have  thus  attempted  to  establish,  as  a  principle  of  our  law, 
that  a  court  of  equity  has  jurisdiction  to  entertain  an  action  for, 
and  decree  a  partition  of,  personal  property  between  tenants  in 
common. 

We  consider  this  power,  however,  like  many  other  branches  of 
equity  jurisdiction,  to  be  somewhat  discretionary  with  the  court, 
and  we  are  not  prepared  to  say  that  a  tenant  in  common  of  personal 
property,  as  a  matter  of  right,  may,  in  all  cases,  bring  a  partition 
suit.  It  is  enough,  however,  that  in  the  present  instance,  good 
grounds  are  shown  why  the  court,  in  justice  to  all  parties,  should 
entertain  the  action. 

The  order  appealed  from  is,  therefore,  affirmed,  with  ten  dollars 
costs  and  printing  expenses. 

The  same  decision  is  given  in  the  cases  of  Wm.  Andrews, 
Admr.,  v.  Silas  Beits  et  al.,  and  John  S.  Robinson  v.  Silas  Beits 
et  al.j  the  three  cases  being  argued  as  one,  and  the  same  order  to 
be  made  in  each. 

Present  —  LEARNED,  P.  J.,  BOABDMAN  and  BOOKES,  JJ. 

Order  affirmed  with  ten  dollars  costs  and  printing,  with  leave 
to  answer,  etc. 


HICKS  v.  MARSHALL.  327 

THIKD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 

HORACE  H.  HICKS  AND  ANOTHER,  PLAINTIFFS,  v.  GEORGE 
C.  MARSHALL,  AND  JOHN  BOYER,  COMMITTEE,  ETC.,  OF 
GEORGE  C.  MARSHALL,  DEFENDANTS. 

Inquisition — prima  facie  evidence  of  unsound   mind — Promissory  note  made  by 
lunatic — action  upon  —  burden  of  proof  in. 

This  action  -was  brought  by  the  plaintiffs  against  the  maker  of  a  promissory  note, 
which  they  had  purchased,  before  maturity,  in  good  faith,  and  for  full  value. 
Upon  the  trial  the  proceedings  upon  an  inquisition,  had  after  the  making  of  the 
note  and  the  commencement  of  this  action,  were  given  in  evidence,  by  which 
tiie  defendant  was  declared  to  be  of  unsound  mind  at  the  time  he  made  the 
same.  Held,  that  the  inquisition  established,  prima  facie,  the  insanity  of  the 
defendant  at  the  time  of  the  making  of  the  note,  and  that,  in  order  to  recover, 
the  plaintiffs  must  show  either  that  he  was  sane  at  that  time,  or  that  he  had 
received  such  a  consideration  for  the  note  as  that  justice  and  equity  required 
it  to  be  paid  out  of  his  estate. 

MOTION  for  a  new  trial  upon  exceptions  ordered  to  be  heard  in 
the  first  instance  at  the  General  Term,  after  a  verdict  in  favor  of 
the  plaintiffs. 

The  action  was  brought  upon  a  promissory  note  executed  by 
Marshall  to  one  Hunt,  and  by  him  indorsed  to  plaintiff 

W~  W.  Hare,  for  the  plaintiffs. 

H.  A.  Maynard,  for  the  defendants. 

BOARDMAN,  J.  : 

This  action  was  originally  brought  against  Marshall  upon  bin 
promissory  note  for  $250.  Marshall  put  in  an  answer.  Some- 
time afterward,  by  proceedings  duly  had,  Marshall  was  declared  to 
be  a  person  "  of  unsound  mind,  and  for  that  cause  is  incapable  of  the 
government  of  himself  or  the  management  of  his  affairs  *  *  * 
and  that  he  has  been  in  that  same  state  for  one  year  and  a-half 
past ;  that  he  has,  during  the  last  seven  years,  on  several  occasions, 
been  afflicted  with  mental  alienation."  The  inquisition  is  dated 
March  2,  1874,  and  the  note  sued  upon  is  dated  June  18,  1873. 
Boyer  was  duly  appointed  committee.  On  the  4th  of  August, 
1874,  by  order  of  the  court,  Boyer  was  made  a  party  defendant, 
with  leave  to  put  in  a  supplemental  answer  setting  up  Marshall'e 
unsoundness  of  mind  as  a  defense.  This  was  done. 


828  HICKS  v.  MARSHALL. 

Tiiiiu)  DEPARTMENT,  SEPTEMBER  TERM,  1876. 

Upon  the  trial,  the  note  was  read  in  evidence.  A  stipulation 
was  also  read,  to  the  effect  that  plaintiffs  purchased  said  note  before 
it  became  due,  paid  full  value  therefor,  and  are  bona  fide  holders 
thereof;  that  they  had  no  knowledge  of  the  consideration  of  the 
note,  and  did  not  know  defendant,  nor  of  him,  except  that  he  was 
a  farmer  and  reputed  to  be  good.  The  plaintiffs  then  rested. 
The  defendants  then  gave  in  evidence  the  proceedings  on  the 
inquisition,  and  appointment  of  Boyer  as  committee,  and  rested. 

The  defendants,  by  various  requests,  asked  the  court  to  hold  and 
decide  that,  upon  the  evidence  given,  a  defense  was  established, 
and  a  verdict  should  be  given  to  the  defendants.  This  was  refused, 
and  a  verdict  was  ordered  for  the  plaintiffs  for  the  amount  of  the 
note  and  interest.  It  is  alleged  that  such  decisions  of  the  court 
were  erroneous,  and  therefore  a  new  trial  should  be  had. 

This  court  is  called  upon  to  determine  whether  the  inquisition 
so  put  in  evidence  constituted  a  legal  defense  to  the  action. 

Persons  of  unsound  mind  are  not  necessarily  relieved  from  the 
obligation  of  their  contracts.  When  they  or  their  estates  have  been 
benefited  by  their  contracts,  they  will  be  held  liable.  A  person 
dealing  with  them  under  such  circumstances,  in  good  faith,  without 
fraud  and  without  notice  of  any  mental  unsoundness,  may  create 
a  valid  claim.  (2  Kent,  451,  note  6.)  Still,  upon  the  appearance 
of  incapacity  it  is  in  the  discretion  of  a  court  of  equity,  upon  the 
facts  shown,  to  order  the  debt  paid  or  not,  as  shall  seem  just. 
In  this  case  there  is  no  evidence  what  the  consideration  of  the  note 
was;  it  is  therefore  presumptively  good  and  valid  in  the  absence 
of  the  inquisition.  If  the  note  was  given  for  money  lent,  or  prop- 
erty purchased,  whereby  defendant's  estate  was  increased  and  bene- 
fited, equity  would  compel  its  payment.  The  inquisition  has 
found  Marshall  of  unsound  mind  ;  it  does  not  follow  that  he  should 
not  pay  his  debts  honestly  contracted  prior  to  that  date,  though 
the  inquisition  overreached  the  time  when  the  debts  were  created. 
If  it  be  shown  that  he  was  cheated,  defrauded  or  taken  advantage 
of,  the  courts  will  be  very  ready  to  protect  him  and  his  estate  from 
the  consequences  thereof. 

In  this  case  the  plaintiffs'  cause  of  action  was  complete  when  it 
was  begun.  They  were  bona  fide  purchasers  for  full  value,  and 
before  the  maturity  of  the  note  in  suit.  Did  the  inquisition,  after- 


HICKS  u.  MARSHALL.  329 

THIBD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 

ward  taken  without  their  knowledge,  and  to  which  they  were  not 
parties,  destroy  the  plaintiffs'  rights,  or  were  the  defendants  bound 
to  go  further,  and  attack  the  consideration  or  the  bona  fides  of  the 
plaintiffs  ?  (1  Pars,  on  Notes,  276.)  I  apprehend  the  supple- 
mental answer,  and  the  order  allowing  Boyer  to  be  made  a  defend- 
ant and  put  in  such  answer,  is  equivalent  to  permission  by  the 
court  that  the  validity  of  plaintiffs'  claim  might  be  tested  at  law, 
and  that  the  committee  should  be  permitted  to  take  care  of  Mar- 
shall's rights  during  the  litigation.  In  the  discharge  of  this  duty 
the  defendants  have  seen  fit  to  rest  the  case  upon  the  findings  of 
the  inquisition.  It  is  insisted  that  such  evidence  is  sufficient  to 
defeat  plaintiff's  action.  It  is  the  only  evidence  touching  Mar- 
shall's mental  condition.  Such  evidence  is  not  conclusive ;  it  may 
be  rebutted,  but  until  it  is  overthrown,  it  will  constitute  prirna 
fade  evidence  of  the  fact.  (Sergeson  v.  Sealey,  2  Atk.,  412.)  Such 
I  understand  is  the  sottled  doctrine  of  our  courts.  Judge  BRONSON 
says,  in  Osterhout  v.  Shoemaker  (3  Hill,  516) :  "  I  see  no  principle 
upon  which  the  inquisition  taken  upon  a  commission  of  lunacy 
can  be  given  in  evidence  to  defeat  the  rights  of  third  persona  who 
were  strangers  to  the  proceedings.  *  *  *  But  it  seems  to  be 
settled  that  such  evidence  is  admissible  though  not  conclusive.'1 
Hart  v.  Deamer  (6  Wend.,  497),  is  also  directly  in  point,  the 
inquisition  having  been  taken  after  the  date  of  the  contract 
and  overreaching  it.  (Sergeson  v.  Sealey,  2  Atk.,  412.)  In 
Ooodell  v.  Harrington  (3  N.  Y.  S.  C.,  345),  it  is  held  that  an 
inquisition  is  prima  facie  evidence  of  defendant's  insanity  before 
the  contract  made,  and  the  burden  was  cast  on  plaintiff  to  show 
the  contract  was  made  during  lucid  intervals,  or  that  the  inquisi- 
tion was  erroneous.  (See,  also  Hoyt  v.  Adee,  3  Lans.,  173 ;  Van 
Deusen  v.  Sweet,  51  N.  Y.,  378,  386;  Griswold  v.  Miller,  15 
Barb.,  523.) 

From  these  authorities,  it  follows  that  the  inquisition  was  com- 
petent evidence  to  establish  the  mental  incompetency  of  Marshall,  at 
the  time  he  signed  the  note ;  that  being  so,  the  burden  of  proof 
•vraa  thrown  upon  the  plaintiff  to  overcome  the  presumption  arising 
from  the  findings  of  the  inquisition,  and  to  establish  the  mental 
rompetency  of  Marshall  at  the  time  the  note  was  made. 

The  case  of  Lancaster  Co.  Nat.  Bank  v.  Moore  (12  Alb.  Law 
HUN— VOL.  VIII.  42 


830  HICKS  v.  MARSHALL. 

THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 

Jour.,  185),  is  relied  upon  by  the  plaintiff,  but  in  that  case  the 
action  was  sustained,  upon  the  principle  that  the  money  obtained  by 
the  defendant  from  the  plaintiff  was  in  the  nature  of  necessaries, 
and  was  applied  to  the  payment  of  his  debts ;  the  consideration 
was  presumptively  good,  and  beneficial  to  the  defendant's  estate. 
In  the  case  under  consideration  we  have,  upon  the  evidence,  a 
defendant  incapable  of  making  a  valid  note  at  the  date  of 
the  note  in  suit;  we  are  not  informed  of  the  consideration  for 
which  the  note  was  given.  Under  such  facts,  we  think  courts 
ought  not  to  presume  the  adequacy  of  the  consideration  in 
order  to  sustain  this  judgment  against  the  lunatic.  I  under- 
stand this  action  is  now  pending  in  effect  against  George  C. 
Marshall  alone,  because  the  committee  cannot  be  sued  at  law. 
That  the  committee  is  permitted  to  attend  to  the  defense  of  Mar- 
shall, and  by  the  answer  interposed  is  so  doing ;  that  the  action  is 
being  prosecuted  for  the  information  of  the  court,  and  to  determine 
whether  the  plaintiffs'  claim  is  founded  in  justice,  and  ought  to  be 
paid  out  of  the  defendant's  estate ;  that  a  recovery  is  founded,  first, 
upon  the  sanity  of  the  defendant  when  the  note  was  given,  but 
even  if  then  insane,  a  recovery  may  still  be  had  if  the  consideration 
moving  to  the  defendant  was  of  that  nature  which  justice  and 
equity  require  to  be  paid.  When  the  defendant  rested  the  burden 
of  proof  was  on  plaintiffs,  to  show  the  nature  and  fairness  of  the 
transaction  and  sufficiency  of  the  consideration.  The  presump- 
tion arising  from  the  possession  of  the  defendant's  note  is  overcome 
by  the  findings  of  the  inquisition.  Unless  the  plaintiffs  show  the 
defendant  sane  when  the  note  was  executed,  or  that  the  considera- 
tion was  such  as  should  be  upheld  in  equity,  the  defendant  would 
be  entitled  to  a  verdict  upon  the  prima  fade  defense  established 
by  proof  of  the  inquisition. 

In  other  words,  this  trial  is  for  the  information  of  the  court,  and 
by  its  results  the  future  action  of  the  court  will  probably  be  gov- 
erned ;  but  in  no  view,  as  I  understand  the  law,  can  a  verdict  be 
allowed  against  Boyer,  the  committee ;  he  is  an  officer  of  the  court, 
and  acts  only  through  its  orders ;  an  action  begun  against  the  com- 
mittee would  be  in  contempt  of  the  court. 

For  the  reasons  given,  I  think  the  verdict  should  be  set  aside 
and  a  new  trial  granted,  costs  to  abide  the  event. 


HICKS  v.  MARSHALL.  331 

THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 

LEARNED,  P.  J.  (dissenting) : 

The  following  facts  were  proved  and  not  disputed :  The  plain- 
tiffs were  lona  fide  holders,  for  full  value,  of  a  negotiable  promis- 
sory note,  made  by  Marshall  and  transferred  to  them,  before  it  was 
payable.  They  had  no  knowledge  of  Marshall's  alleged  lunacy. 
After  the  note  was  due,  and  after  this  action  had  been  commenced, 
and  after  Marshall  had  put  in  a  verified  answer,  not  averring 
lunacy,  proceedings  in  the  nature  of  a  writ  de  lunatioo  were  had, 
and  Marshall  was  declared  to  be  a  lunatic,  and  to  have  been  a 
lunatic  for  a  year  and  a-half  previous.  This  time  included  the  date 
of  the  note.  No  other  fact  was  proved.  There  was  then  no  ques- 
tion for  the  jury.  The  court  directed  a  verdict  for  the  plaintiff. 
The  defendants  appeal.  If  the  court  was  in  error,  then  it  follows 
that  the  verdict  should  have  been  directed  for  the  defendants. 

We  have  then  this  question :  When  a  negotiable  promissory  note 
is  made  by  a  person,  against  whom  no  proceedings  de  lunatico  have 
been  taken,  and  that  note,  before  it  is  payable,  has  passed  into  the 
hands  of  a  honafide  holder,  for  full  value,  who  has  no  knowledge 
of  the  maker's  alleged  lunacy,  is  proof  of  such  lunacy,  without 
any  proof  of  the  payee's  knowledge  of  the  same,  and  without  any 
proof  of  fraud  upon  the  maker,  a  defense  to  the  note  ?  I  think  it 
is  not. 

In  Brown  v.  Joddrell  (1  Moo.  &  M.,  105),  it  is  said :  "  The 
defense  (of  lunacy)  will  not  avail  unless  it  be  shown  that  the  plain- 
tiff imposed  on  the  defendant." 

In  Dana  v.  Lady  Kirkwall  (8  C.  &  P.,  679) :  "  It  is  not  enough 
that  Lady  Kirkwall  was  of  unsound  mind,  you  must  be  satisfied 
that  the  plaintiff  knew  it  and  took  advantage  of  it." 

In  Molton  v.  Camroux  (2  Exch.,  487;  affirmed  4:  id.,  17),  it 
is  said  that  where  a  person,  apparently  of  sound  mind  and  not 
known  to  be  otherwise,  enters  into  a  contract  which  is  bona  fide 
and  which  is  executed  and  completed,  and  the  property  which  is 
the  subject  of  the  contract  cannot  be  restored  so  as  to  put  the 
parties  in  statu  quo,  the  contract  cannot  be  set  aside  for  alleged 
lunacy.  (To  the  same  effect,  Baxter  v.  Portsmouth,  5  B.  &  C.,  170.) 

In  IZlliot  v.  Ince  (7  De  G.,  M.  &  G.,  475),  the  chancellor  said : 
M  The  result  of  the  authorities  seems  to  be,  that  dealings  of  sale 
end  purchase  by  a  person  apparently  sane,  though  subsequently 


832  HICKS  u.  MARSHALL. 

THIKD  DEPARTMENT,  SEPTEMBEK  TERM,  1876. 

proved  to  be  insane,  will  not  be  set  aside  against  those  who  have 
dealt  with  him  on  the  faith  of  his  being  a  person  of  competent 
understanding." 

The  same  doctrine  may  be  found  in  the  courts  of  this  country. 
"  No  contract, "  say  the  court  in  Young  v.  Stevens  (48  N.  H.,  133), 
"  can  be  rescinded,  until  both  can  be  restored  to  the  condition  in 
which  they  were  before  the  contract  was  made." 

In  Beals  v.  See  (10  Penn.  State,  56),  it  was  decided  that  an 
executed  contract  by  a  merchant,  for  the  purchase  of  goods,  is  not 
avoided  by  proof  of  lunacy,  unless  there  was  fraud  by  the  vendor, 
or  knowledge  of  the  lunatic's  condition. 

The  court  cites  the  familiar  doctrine  that,  when  one  of  two 
innocent  parties  must  suffer,  the  loss  should  fall  on  him  by  whose 
act  it  is  occasioned.  This  was  not  a  purchase  of  necessaries. 

In  Lancaster  Co.  Bank  v.  Moore  (12  Alb.  Law  Jour.,  185),  a  case 
in  the  same  State,  the  plaintiff  was  allowed  to  recover  upon  the  note 
of  the  defendant,  who  had  been  adjudged  a  lunatic.  The  court  say : 
"  The  bank  had,  in  good  faith,  loaned  the  money  ;  the  contract 
was  executed,  so  far  as  the  consideration  is  concerned ;  it  would  be 
derogatory  to  law  and  good  morals  that  the  defendant  should  be 
allowed  to  retain  the  money." 

In  Behren  v.  McKenzie  (23  Iowa,  343),  an  action  was  brought 
upon  an  injunction  bond,  which,  of  course,  was  not  an  action  for 
"  necessaries."  This  was  held  to  be  an  executed  contract,  and  the 
plaintiff  recovered.  And  the  court  say :  "  But,  with  respect  to 
executed  contracts,  the  tendency  of  modern  decisions  is  to  hold 
them  (persons  of  unsound  mind)  liable  in  cases  where  the  transac- 
tion is  in  the  ordinary  course  of  business,  is  fair  and  reasonable, 
and  the  mental  condition  was  not  known  to  the  other  party,  and 
the  parties  cannot  be  put  in  statu  quo" 

In  the  present  case  there  is  no  evidence  that  the  payee,  Hunt, 
knew  or  suspected  Marshall  to  be  a  lunatic.  It  is  positively  proved 
that  the  plaintiffs  knew  nothing  of  his  lunacy.  The  parties  cannot 
be  put  in  statu  quo,  because  the  plaintiffs  have  paid  their  money 
to  Hunt,  the  payee  of  the  note. 

This  is  the  case  of  an  executed  contract.  The  note  recites,  and 
uprima  facie  evidence  of  a  good  consideration,  received  by  the 
maker.  (Edwards  Prom.  Notes,  56.)  Indeed,  as  to  bona  fide  hold 


HICKS  v.  MARSHALL.  333 

THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 

ere,  like  the  plaintiffs,  it  is  conclusive  evidence,  as  a  general  rule, 
of  such  good  consideration.  On  the  proof  as  it  stands,  Marshall 
must  be  presumed  to  have  received  a  good  or  valuable  considera- 
tion. His  lunacy  is  no  evidence  to  the  contrary.  The  plaintiffs 
are  entirely  without  fault.  Even  if  Marshall  be  equally  innocent 
(which  is  the  most  favorable  supposition  for  him),  yet  it  is  his  act 
which  occasioned  the  loss,  and,  on  that  ground,  he  should  bear  it 

But,  in  order  to  defeat  the  plaintiffs,  we  must  presume  that 
Marshal]  received  nothing ;  or,  at  least,  must  presume  that  Hunt 
knew  that  Marshall  was  a  lunatic ;  and  not  only  this,  but  further, 
we  must  presume  that  Hunt  defrauded  him.  This  is  to  reverse 
the  rule  that  fraud  is  not  to  be  presumed. 

It  will  be  seen,  by  several  of  the  cases  above  cited,  that  the 
liability  of  the  lunatic  is  not  confined  to  an  indebtedness  for 
necessaries.  (See,  also,  Campbell  v.  Hooper,  3  Sm.  &  G-.,  153.) 
And  therefore  it  is  not  necessary  for  the  plaintiffs  to  show  that  the 
debt  was  contracted  for  that  cause. 

In  1  Parsons  on  Bills,  150,  it  is  said,  on  the  authority  of  Sen- 
tance  v.  Poole  (3  C.  &  P.,  1),  that  the  note  of  one,  known  to  the 
payee  to  be  insane,  is  void,  even  in  the  hands  of  a  bona  fide  holder. 
The  case  cited  hardly  goes  to  that  extent.  But  there  is  no  evi- 
dence in  the  present  case  that  Hunt  knew  or  suspected  Marshall's 
lunacy.  In  the  absence  of  all  proof  on  the  subject,  it  is  a  reason- 
able presumption  that  no  man  is  suspected  of  lunacy  by  those  who 
deal  with  him,  prior  to  the  taking  of  proceedings  de  lunatico. 

The  innocent  holders  of  negotiable  paper  are,  I  think,  entitled 
to  the  benefit  of  that  presumption.  They  have  a  right  to  call  on 
the  defendant,  before  he  can  successfully  defend  this  action,  to  show 
not  merely  his  lunacy,  but  Hunt's  knowledge  or  suspicion  of  it, 
and  the  fraud,  if  any,  practiced  upon  him.  If  he  was  not  defrauded, 
he  ought  to  pay. 

Present  —  LEARNED,  P.  J.,  BOAKDMAN  and  BOOKKS,  J J . 
New  trial  granted,  costs  to  abide  event. 


834          PEOPLE  EX  BEL.  DEMAREST  v.  FAHICHILD. 
THIKD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 


THE  PEOPLE  EX  BEL.  WILLIAM  E.  DEMAREST  AND  OTHEBS, 
APPELLANTS,  v.  CHARLES  S.  FAIRCHILD,  ATTORNEY- 
GENERAL  OF  THE  STATE  OP  NEW  YORK,  RESPONDENT. 

Quo  viarranto  —  Code,  §  432  —  Attorney-General   tannot  be  compelled  to  bring 

action  of. 

The  right  to  remove  one  who  has  unlawfully  intruded  into  a  public  office  in 
vested  in  the  State  alone,  and  its  decision,  as  to  whether  or  not  an  action  shall 
be  brought  to  remove  such  intruder  therefrom,  is  final  and  cannot  be  reviewed 
by  the  courts. 

People  v.  Attorney-General  (22  Barb.,  114)  followed. 

APPEAL  from  an  order  made  at  the  Special  Term,  denying  a 
motion  for  a  writ  of  peremptory  mandamus. 

This  is  a  motion  for  a  peremptory  writ  of  mandamus,  to  compel 
the  respondent,  as  attorney-general,  to  institute  and  prosecute  to 
final  judgment  an  action  in  the  nature  of  a  quo  warranto,  in  the 
name  of  The  People,  on  behalf  of  the  relators,  to  determine  the  title 
of  Samuel  A.  Lewis  and  others  to  the  office  of  alderman  for  the  city 
of  New  York,  and  to  determine  their  right,  as  a  board  of  aldermen, 
to  exercise  the  powers  and  discharge  the  duties  of  the  common 
council,  and  to  oust  them  therefrom,  and  to  establish  in  the  office 
of  alderman  and  assistant  alderman  these  relators,  and  to  invest 
them  collectively  with  the  right  to  exercise  the  powers  and  dis- 
charge the  duties  of  such  common  council. 

The  relators  allege  that  they  were  duly  elected  aldermen  and 
assistant  aldermen  of  the  city  of  New  York,  pursuant  to  the  charter 
of  said  city,  and  that  as  such  were  duly  sworn,  and  on  the  first 
Monday  of  January  last  the  boards  of  aldermen  and  assistant 
aldermen  duly  organized  and  notified  the  mayor,  who  refused  to 
recognize  them  as  such. 

That  the  act  of  1873,  chapter  335,  section  2,  and  the  amend- 
ments thereto,  abolishing  the  board  of  assistant  aldermen,  and 
merging  the  duties  thereof  into  the  board  of  aldermen,  and  estab- 
lishing what  is  called  the  minority  system  of  electing  the  members 
of  snch  board  of  aldermen,  is  unconstitutional. 

That  Samuel  A.  Lewis  and  others,  claiming  to  be  elected  aldermen, 
under  said  unconstitutional  acts,  on  the  first  Monday  of  January, 


PEOPLE  KX  EEL.  DEMAREST  u.  FAIRCHILD.          -335 
THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 

1876,  organized  as  such,  and  have  ever  since  pretended  to  discharge 
the  duties  of  the  common  council,  and  said  mayor  has  so  reco? 
nized  them. 

The  attorney-general  having  refused  to  bring  an  action  of  quo 
warranto,  this  application  was  made  to  compel  him  to  do  so. 

Wilson  F.  Wolf,  for  the  appellants. 
Charles  S.  Fairchild,  respondent,  in  person, 

LEARNED,  P.  J. : 

The  views  expressed  by  Judge  HARRIS,  in  People  v.  Attor nay- 
General  (22  Barb.,  114:),  are  sound.  When  a  person  intrudes  into 
an  office,  it  is  the  right  of  the  State,  as  sovereign,  to  remove  him. 
Individuals  have  no  such  right.  This  is  still  the  law,  although 
officers  are  elected  and  not  appointed.  Heuce  the  State  has  the 
right  to  decide  whether  it  will  or  will  not  remove  the  intruder, 
^he  right  to  make  that  decision  must  be  vested  in  some  one.  It  is 
rested  in  the  Attorney-General. 

As  is  pointed  out  by  Judge  HARRIS,  the  Court  of  King's  Bench 
sometimes  restricted  the  exercise  of  this  power,  but  it  never  com- 
pelled its  exercise.  So,  by  the  present  law,  in  certain  actions,  it  is 
only  by  leave  of  the  court  that  the  attorney-general  may  sue. 
But  there  is  nothing  to  show  that  the  court  can  ever  compel  him  to 
bring  an  action  in  any  of  these  or  similar  cases. 

If  this  mandamus  could  be  granted,  then  one  of  two  results  must 
follow:  either  the  court  must  decide,  in  each  case,  whether  under 
all  the  circumstances  a  quo  warranto  ought  to  be  brought ;  or  the 
court  must,  as  matter  of  right,  in  all  cases  direct  the  attorney -gen- 
eral to  bring  the  action. 

The  first  alternative  throws  on  the  judiciary  a  duty  which  belongs 
to  the  administrative  part  of  the  government.  The  second  assumes 
that  it  is  the  right  of  individuals,  and  not  the  exclusive  right  of  the 
State,  to  remove  intruders  from  offices  usurped  by  them. 

It  is  suggested  that  the  attorney-general  may  neglect  his  duty. 
That  must  always  be  possible  when  a  matter  is  left  to  the  discre- 
tion of  an  officer,  as  it  often  is.  Far  greater  evils  would  arise  if 
the  court  were  to  assume  the  exercise  of  a  discretion  not  intrusted 


336  McKINNEY  v.  HOLT. 

THIRD  DEPARTMENT,  SEPTEMBER  TEHM,  1876. 

to  them,  or  if  they  were  to  allow  any  individual  whatever  to  cora- 
wi'l  the  commencement  and  prosecution  of  actions  of  quo  warrants 
Against  officers  of  the  State. 

A  quo  warranto  should  continue  to  be,  as  it  always  has  been,  an 
action  by  the  State  to  oust  an  alleged  intruder.  It  should  not 
degenerate  into  a  personal  contest  between  two  claimants  of  an 
office.  And  therefore  the  State,  in  its  administrative  capacity, 
should  have  the  right  to  bring  a  quo  warranto  against  intruders 
into  public  offices,  in  its  own  discretion. 

The  order  appealed  from  should  be  affirmed. 

Present  —  LBABNED,  P.  J.,  BOOKES  and  BOARDMAN,  J J. 
Order  affirmed. 


CHARLES    MoKIffNEY    AND    SHERMAN    D.    PHELPS 

RESPONDENTS,  v.  HORATIO  N.  HOLT,  APPELLANT. 

Lease  — possession  under  —  defense  to  action  upon  —  Quantum  meruit. 

In  May,  1870,  the  defendant  entered  into  an  agreement  with  one  D.,  the  owner  of  a 
coal  yard,  by  which  he  was  to  deliver  coal  at  the  yard  for  D.  to  sell,  to  remain 
defendant's  property  until  sold  and  paid  for,  and  to  place  a  man  in  the  office,  as 
his  agent,  to  hold  the  coal  and  receive  the  proceeds  of  the  sale  thereof,  which 
proceeds  after  certain  deductions  for  expenses  as  provided  for  in  the  agreement, 
were  to  be  divided  between  defendant  and  D.  In  pursuance  of  this  agreement 
defendant  had,  October  14th,  1870,  deposited  a  large  quantity  of  coal  in  the  yard. 
On  that  day  plaintiffs  purchased  the  yard  upon  the  foreclosure  of  a  mortgage, 
and  leased  itto  the  defendant  until  April  1st,  1871.  Subsequently  defendant  sold 
the  coal  in  the  yard  and  assigned  his  lease  to  G.  who  thereafter  demanded  pos- 
session of  the  yard  and  office  from  D.,  who  refused  to  give  up  the  possession  ot 
the  office  and  portions  of  the  yard,  claiming  that  he  was  entitled  to  occupy 
the  yard  and  sell  the  coal  under  the  agreement  with  defendant.  G.  before 
April  first  sold  all  the  coal  sold  to  him  by  defendant,  and  stored  other  coal  in, 
and  sold  the  same  from  the  yard. 

[n  this  action  to  recover  rent  due  under  the  lease,  defendant  defended  on  the  ground 
that  the  plaintiffs  had  failed  to  deliver  to  him  possession  of  the  demised  premises. 
Held,  1.  That  if  the  claim  of  D.,  that  he  was  entitled  to  possession  under  hia 
agreement  with  defendant,  was  rightful,  then  defendant  was  kept  out  of  pos- 
session through  his  own  fault,  and  so  could  not  complain  thereof. 

S.  That  if  such  claim  was  unfounded,  then  D.  was  a  wrong-doer  and  defendant 
thould  have  removed  him. 


McKINNEY  v.  HOLT. 


THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 


8.  That  as  defendant's  assignee  occupied  a  portion  of  the  premises  for  the  entire 
term,  he  was,  in  any  event,  liable  for  the  value  of  the  portion  so  occupied. 

APPEAL  from  a  judgment  in  favor  of  the  plaintiffs,  entered  upon 
the  report  of  a  referee. 

This  was  an  action  to  recover  the  rent  secured  by  a  lease  given  by 
the  plaintiffs  to  the  defendant.  The  referee  found  that  in  May,  1870, 
the  defendant  and  one  Devereux  entered  into  an  agreement  with 
reference  to  a  coal  yard  owned  by  Devereux.  By  this  agreement 
defendant  was  to  have  the  use  of  the  yard,  and  was  to  furnish  coal 
for  him  to  sell  and  share  the  profits  with  him,  defendant  to  have 
the  right  to  employ  a  man  to  remain  on  the  premises  to  look  after 
his  interests.  In  pursuance  of  this  agreement  defendant  delivered 
large  quantities  of  coal,  and  had  in  the  yard  on  October  14th,  1870, 
about  2,200  tons  of  coal  belonging  to  him.  On  that  day  the  yard 
was  sold  upon  the  foreclosure  of  a  mortgage  given  by  Devereux 
and  purchased  by  the  plaintiffs,  who,  on  the  same  day,  leased  the 
same  to  the  defendant  until  April  1st,  1871.  On  the  same  day 
defendant  assigned  the  lease  and  sold  all  the  coal  to  one  Gilmore, 
who  sold  and  disposed  of  all  the  coal  to  his  customers.  Devereux 
objected  to  the  sale  of  the  coal  to  Gilmore  and  refused  to  give  up 
possession  of  the  office  and  certain  portions  of  the  yard,  upon  the 
ground  that  he  was  entitled  to  sell  the  coal  and  remain  in  the  yard 
under  his  agreement  with  the  defendant.  The  referee  found,  as 
conclusions  of  law,  that  upon  the  sale  under  the  mortgage  the 
plaintiffs  became  the  owners  in  fee,  and  entitled  to  the  immediate 
possession  of  the  yard. 

"  That  upon  said  sale  and  purchase  being  perfected,  the  defendant 
had  a  lawful  right  to  surrender  and  deliver  up  to  the  purchasers  all 
his  right  to,  and  possession  of  said  coal  yard. 

That  by  taking  a  lease  of  said  premises  from  the  purchasers  while 
he  was  in  possession  of  some  part  thereof,  the  defendant  is  deemed 
to  have  held  under  them  from  the  date  of  the  lease,  and  cannot 
claim  to  have  been  in  possession  from  that  time  in  hostility  to  their 
title. 

In  giving  the  lease  in  question,  there  was  an  implied  obligation 
on  the  part  of  the  lessors,  that  the  lessee  and  his  assigns  should 
have  possession  of  the  entire  premises  leased. 

That  the  lessors  did  not  give,  nor  did  the  defendant  or  his  assignee 
HUN—  VOL.  VIII.  43 


838  McKINNEY  y.  HOLT. 

THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 

acquire  possession  of  the  entire  premises  leased,  but  only  of  a  part 
thereof,  and  there  was  a  breach  on  the  part  of  the  lessors  of  their 
obligation. 

That  by  reason  of  such  breach  of  the  obligation  of  the  lessors, 
the  defendant  or  his  assignees  had  the  right  to  surrender  to  them 
said  lease  and  the  possession  held  thereunder,  and  the  defendant 
would  be  exempt  from  all  liability  to  pay  rent  to  the  plaintiffs,  but  by 
retaining  during  the  term  of  the  said  lease,  the  possession  acquired 
under  the  same  by  the  defendant  or  his  assignee,  the  defendant 
is  liable  to  the  plaintiffs  in  this  action. 

That  the  plaintiffs  are  entitled  to  a  judgment  in  their  favor 
against  the  defendant  for  the  sum  of  $457.64,  being  the  amount  of 
the  stipulated  rent,  less  the  damages  sustained  by  reason  of  the 
breach  of  the  obligation  of  the  lessors  before  mentioned,  with 
interest  upon  the  difference,  besides  costs." 

Alfred  C.  Cosoe,  for  the  appellant. 
G.  W.  Hotchfciss,  for  the  respondents. 

LEABNED,  P.  J. : 

By  the  agreement  of  May,  1870,  between  the  defendant  and 
Devereux,  then  owner  of  the  premises,  defendant  obtained  "  the  free 
use  of"  the  premises,  so  far  as  necessary  for  the  purposes  of  that 
agreement.  The  defendant  was  to  place  coal  there,  which  was  to 
remain  his  until  sold,  and  was  to  put  a  man  in  the  office  as  his 
agent,  to  have  possession  of  the  coal  for  him.  In  pursuance  of  that 
agreement  defendant  entered  into  the  possession  and  use  stipulate'! 
by  the  agreement,  and  deposited  large  quantities  of  coal  on  the 
premises. 

While  this  agreement  was  in  force,  and  on  the  14th  of  October, 
1870,  the  plaintiffs  became  the  owners  of  the  premises  under  a 
statute  foreclosure  of  a  mortgage  made  by  Devereux.  On  the  same 
day,  they  leased  the  premises  to  the  defendant,  who  then  had  2,20^ 
tons  of  coal  thereon.  The  defendant  assigned  the  lease  to  Gilmorc. 
and  sold  him  the  coal.  Gilmore  obtained  a  partial  possession,  but 
was  prevented  by  Devereux  from  obtaining  full  possession.  Dev- 
ereux  claimed  that  under  his  contract  with  the  defendant  he  had 
*ertain  rights  in  the  office,  as  well  as  in  the  coal  on  the  premises. 


McKINNEY  v.  HOLT.  339 

THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 

Admitting  that  the  lease  implies  a  covenant  of  quiet  enjoyment, 
how  has  there  been  any  breach  ?  Devereux  claims  no  title  para- 
mount to  that  of  the  plaintiff.  His  claim  is  under  his  agreement 
with  the  defendant.  If  valid,  the  defendant  is  to  blame.  Mack  v. 
Patchin  (42  N.  Y.,  167),  was  a  case  not  only  of  eviction  under  a 
paramount  title,  but  really  of  eviction  by  the  lessor  himself. 

Christopher  v.  Austin  (11  N.  Y.,  216),  was  also  a  case  of  wrong- 
ful eviction  by  the  lessor. 

In  the  present  case  the  defendant  made  the  agreement,  under 
which  Devereux  asserted  (rightfully  or  not)  certain  claims.  If 
rightfully,  then  the  defendant  himself  is  at  fault  for  his  being  kept 
out  of  possession ;  if  not  rightfully,  then  Devereux  was  a  wrong- 
doer, and  defendant  should  have  removed  him.  (Gardner  v. 
Keteltas,  3  Hill,  330.) 

Nor  is  the  present  a  case  where  a  lessee  is  kept  out  of  posses- 
sion of  a  part  by  a  person  holding  under  a  prior  lease,  executed  by 
the  same  landlord.  (Christopher  v.  Austin,  11  N.  Y.,  216;  Law- 
rence v.  French,  25  Wend.,  443.)  And  even  if  it  were  considered 
analogous  to  those  cases,  the  defendant  has  had  the  benefit  of  the 
principle  therein  established.  The  plaintiffs  have  recovered  not  for 
the  whole  rent,  but  as  for  a  quantum  meruit. 

It  may  be  that  if  Devereux  had  been  holding  adversely  to  the 
lessors,  the  lease  would  have  been  void.  (Livingston  v.  Proseus, 
2  Hill,  526.)  But  the  referee  has  allowed  the  plaintiffs  to  recover 
rent  only  for  that  part  of  which  the  defendant,  or  his  assignee, 
obtained  possession.  Even  then  if  we  assume  that,  at  the  time  of 
the  execution  of  the  lease,  the  defendant  was  not,  and  Deverenx 
was,  in  possession,  still  the  referee  has  done  no  injustice  to  the 
defendant.  So  far  only  as  the  assignee  of  the  defendant  obtained 
possession,  lias  the  defendant  been  adjudged  to  pay.  I  have  exam- 
ined the  exceptions  to  the  admission  and  rejection  of  evidence.  In 
the  view  above  taken  they  are  not  material. 

The  judgment  of  the  referee  should  be  affirmed  with  costs. 

Present  —  LEARNED,  P.  J.,  BOOKES  and  BOARDMAN,  JJ. 
Judgment  affirmed  with  costs. 


840         CULVER  t>.  VILLAGE  OF  FORT  EDWARD. 
THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 


IN  THE  MATTER  OP  ISAAC  B.  CULVER  AND  SAMUEL  A. 
HETFIELD,  APPELLANTS,  v.  THE  VILLAGE  OF  FORT 
EDWARD,  RESPONDENT. 

Village  of  Fort  Edward  —  Town  bonds  —  majority  of  taxable  inhabitants — vote  of  — 
what  constitutes—  Chap.  953  of  18G7  —  chap.  317  of  1868. 

Chapter  953  of  1867  as  amended  by  chapter  317  of  1868,  authorizing  the  village 
of  Fort  Edward  to  issue  bonds,  requires  that  notice  of  the  special  election, 
provided  for  in  said  acts,  should  be  published  for  at  least  two  weeks  previous 
to  the  time  appointed  for  such  election. 

No  bonds  can  be  issued  under  the  provisions  of  said  acts  unless  a  majority  of  all 
the  taxable  inhabitants  of  the  village  shall  vote  so  to  do.  The  consent  >f  a 
majority  of  all  those  who  attend  the  meeting  is  not  sufficient. 

APPEAL  from  an  order  made  at  the  Special  Term,  denying  a 
motion  for  a  peremptory  mandamus  commanding  the  respondent 
to  issue  its  bonds  for  $20,000  in  aid  of  the  Grlens  Falls  Railroad 
Company,  as  authorized  by  chapter  953  of  1867,  as  amended  by 
chapter  317  of  1868. 

Beach  <&  Brown,  for  the  appellants. 
MiUiman  dk  Matthews,  for  the  respondent. 

By  the  Court : 

The  application  for  a  mandamus  was  properly  denied  if  the  modes 
prescribed  by  the  legislature,  as  conditions  to  the  issue  of  the  bonds 
by  the  village,  were  not  complied  with.  The  ends  to  be  accom- 
plished being  in  derogation  of  the  common  law  and  of  the  rights 
of  the  citizens  not  consenting  thereto,  should  be  strictly  construed. 

By  the  act  of  1867,  chapter  953,  notice  of  the  meeting  of  the 
taxable  electors  was  required  to  be  published  "for  at  least  two 
weeks  previous  to  the  time  appointed  for  such  election."  Within 
the  time  required  for  action  by  this  law  nothing  was  done.  By 
chapter  317  of  the  laws  of  1868  the  statute  of  1867  was  amended, 
extending  the  time  within  which  action  might  be  taken  by  the 
village  of  Fort  Edward,  "  by  publishing  a  notice  of  such  meeting 
in  all  the  newspapers  published  in  said  village."  By  the  third 
section  of  the  act  "all  the  provisions  of  said  act  (of  1867)  as  to 


CULVER  v.  VILLAGE  OF  FORT  EDWARD.         341 
THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 

the  qualifications  of  voters  and  the  mode  of  voting  and  holding 
of  the  election  not  inconsistent  with  the  foregoing  provisions,  and 
all  the  other  provisions  not  inconsistent  herewith,  are  hereby  made 
applicable  to  the  village  of  Fort  Edward." 

We  think  this  made  it  necessary  to  publish  the  notice  in  all  the 
papers  "for  at  least  two  weeks  previous  to  the  time  appointed  for  such 
election,"  and  that  a  publication  eleven  days  previous  would  not 
be  a  compliance  with  the  requirements  of  the  law.  This  seems  to 
us  the  natural  and  fair  construction  of  the  two  acts  in  this  respect. 

By  section  1  of  the  act  of  1868,  it  is  provided  that  "  the  taxable 
inhabitants  of  said  village  may  at  such  meeting  by  a  majority  vote 
decide  to  raise,"  etc.  By  section  2  this  expression  is  used :  "  And 
in  case  a  majority  of  the  taxable  inhabitants  shall  vote,"  etc. ;  "the 
trustees  shall  be  commissioners,"  etc.  The  trustees  contend  that 
this  language  requires  a  majority  of  all  the  taxable  inhabitants 
and  not  merely  a  majority  of  such  as  choose  to  attend  and  vote  at 
such  meeting.  It  is  conceded  that  a  majority  of  all  the  taxable 
inhabitants  did  not  vote  to  raise  the  money  or  issue  the  bonds. 

This  view  of  the  trustees  seems  to  us  to  be  correct.  We  do  not 
think  it  was  the  intent  of  the  legislature  to  allow  this  obligation  to 
be  created  against  the  corporation  by  a  minority  of  the  taxable 
inhabitants.  Such  a  purpose  would  be  in  hostility  to  all  similar 
legislation  touching  the  bonding  of  towns,  cities  and  villages  in 
aid  of  railroads,  and  if  intended,  would  have  been  made  clear  by 
the  use  of  language  indicating  such  intent,  as  for  example :  a  majority 
of  all  the  taxable  inhabitants  voting  at  such  meeting.  The 
language  used  plainly  imports  a  majority  of  all  the  inhabitants, 
whether  voting  or  not  voting.  This  construction  is  confirmed  by 
a  reference  to  chapter  32  of  the  Laws  of  1868,  relating  to  this 
same  subject,  whereby  it  was  required  that  the  majority  of  the 
taxable  inhabitants  required  should  represent  a  majority  of  the 
taxable  property  to  be  determined  by  the  last  assessment  roll. 
This  last  requirement  was  struck  out  by  the  provisions  of  chapter 
317  of  that  year,  enacted  a  month  later,  but  in  other  respects 
chapter  32  is  followed  by  chapter  317. 

For  these  reasons  we  think  the  legislature  intended  to  require, 
and  by  chapter  317  did  require,  a  majority  of  all  the  taxable 
inhabitants  of  said  municipality  as  a  condition  precedent  to  the 


842  PALMER  v.  MINAR. 

THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 

right  of  the  trustees  to  issue  bonds  or  raise  money  in  aid  of  this 
railroad. 

If  these  conclusions  are  correct  it  is  unnecessary  to  consider  the 
>ther  points  taken  by  counsel,  and  the  order  appealed  from  should 
be  affirmed,  with  ten  dollars  costs  and  expenses  of  printing. 

Present — LEARNED,  P.  J.,  BOABDMAN  and  BOOKES,  JJ. 

Order  affirmed,  with  ten  dollars  costs  and  expenses  of  printing. 


MARTIN  W.  PALMER,  PLAINTIFF,  v.  SOHUBEL  P.  MINAR, 

DEFENDANT. 

Promissory  note  —  Patent  right  —  tale  of,  consideration  for  —  Statute  of  Pennsyl- 
vania—  Law  of  another  State  —  knowledge  of  existence  of — a  question  of  fact 
not  of  law. 

Section  3  of  the  act  of  April  12,  1872,  passed  by  the  legislature  of  Pennsylvania, 
provides,  that  whenever  a  promissory  note  is  given  in  consideration  of  the  sale 
of  a  patent  right,  "  the  words  '  given  for  a  patent  right '  shall  be  prominently 
and  legibly  written  or  printed  on  the  face  of  such  note,  *  *  *  and  such 
note  or  instrument  in  the  hands  of  any  purchaser  or  holder  shall  be  subject  to 
the  same  defenses  as  in  the  hands  of  the  original  owner  or  holder."  Held, 
that  the  words,  "such  note  or  instrument,"  in  the  last  clause  of  the  sentence, 
mean  a  note  or  instrument  having  on  its  face  the  words  "  given  for  a  patent 
right,"  and  do  not  include  one  which,  although  given  upon  the  sale  of  a  patent 
right,  does  not  bear  those  words. 

This  action  was  brought  against  the  maker  of  a  promissory  note,  purchased  by 
the  plaintiff  (who  knew  that  the  original  consideration  of  the  note  was  the  sale 
of  a  patent  right,  but  not  the  Pennsylvania  law  upon  that  subject),  in  this 
State,  before  maturity  and  in  good  faith.  The  defendant  alleged  that  the  note 
having  been  given  in  the  State  of  Pennsylvania  upon  the  sale  of  a  patent  right, 
and  not  having  the  words  "given  for  a  patent  right "  upon  its  face,  was  void 
under  section  4  of  the  above  act,  which  declares  it  to  be  a  misdemeanor  for 
any  person  knowing  the  consideration  of  a  note  to  be  the  sale  of  a  patent 
right,  to  "take,  sell  or  transfer "  the  same  unless  it  has  the  words  " given  for 
a  patent  right"  upon  its  face. 

Held  (1),  that  the  act  did  not  in  terms  forbid  the  making  of  such  a  note,  but  only 
its  sale  or  transfer;  (2),  that  the  statute  did  not  affect  the  validity  of  such  a  note 
when  purchased  in  this  State  before  maturity  and  in  good  faith;  (8),  that  where 
a  purchaser  in  this  State  did  not  know  of  the  existence  of  the  said  statute,  his 
right  to  recover  upon  the  note  was  not  affected  by  the  fact  that  he  knew  that 
it  was  given  upon  the  sale  of  a  patent  right. 


PALMER  v.  MINAR.  343 

THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 

MOTION  for  a  new  trial,  on  exceptions  ordered  to  be  heard  in  the 
first  instance  at  the  General  Term,  after  a  nonsuit  ordered  by  the 
court. 

This  is  an  action  by  the  indorsee  of  a  promissory  note,  made  in 
Pennsylvania  by  the  defendant.  It  is  in  the  usual  form,  with  the 
words  "  without  defalcation  "  added.  The  answer  sets  up  that  the 
consideration  of  the  note  was  the  sale  to  the  defendant  of  a  certain 
patent  right ;  that  by  the  laws  of  Pennsylvania  all  notes  given  for 
such  a  consideration  are  required  to  have  upon  them  the  words 
"given  for  a  patent  right;"  that  all  such  notes  are,  by  said  laws, 
subject  in  the  hands  of  any  purchaser  to  the  same  defenses  as  in 
the  hands  of  the  original  owner ;  that  by  said  laws,  it  is  a  misde- 
meanor to  take,  sell,  or  transfer  any  such  note  not  having  said  words 
thereon,  knowing  the  consideration  thereof;  that  therefore  the 
transfer  of  the  note  alleged  in  the  complaint  was,  and  the  plaintiff 
took  the  same,  subject  to  the  equities  and  defenses,  in  the  hands  of 
Phelps,  the  original  holder.  The  answer  further  alleges  agree- 
ments on  the  part  of  said  Phelps,  as  a  further  consideration  of  the 
note,  made  at  the  execution  and  delivery  thereof,  and  a  breach  of 
the  same  by  Phelps  and  a  loss  thereby  to  the  defendant,  wherebj 
the  consideration  of  the  note  failed ;  and  the  answer  says  that  the 
defendant  will  insist  on  these  facts  as  a  defense,  and  as  a  recoup 
ment  or  counter-claim. 

On  the  trial  of  the  cause,  the  plaintiff  proved  the  note  and  also  a 
statute  of  Pennsylvania,  February  12,  1797,  in  regard  to  notes  con 
taining  the  words  "  without  defalcation,"  and  also  a  case  decided  in 
that  State.  (Lewis  v.  Reeder,  9  S.  &  R.,  193.)  The  defendant 
gave  in  evidence  another  statute  of  that  State,  April  12, 1872,  being 
that  set  up  in  the  answer;  and  proved  that  the  note  was  given  in 
consideration  of  the  sale  of  a  patent  right. 

Sections  3  and  4  of  said  act  are  as  follows,  viz. : 

"  §  3.  Whenever  any  promissory  note  or  other  negotiable  instru- 
ment shall  be  given,  the  consideration  for  which  shall  consist  in 
whole  or  in  part  of  the  right  to  make,  use  or  vend  any  patent 
invention  or  inventions  claimed  to  be  patented,  the  words  '  given 
for  a  patent  right/  shall  be  prominently  and  legibly  written  ot 
printed  on  the  face  of  such  note  or  instrument,  above  the  signature 
thereto,  and  such  a  note  or  instrument  in  the  hands  of  any  pur 


344  PALMER  v.  MINAR. 

THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 

chaser  or  holder  shall  be  subject  to  the  same  defenses  as  in  the 
hands  of  the  original  owner  or  holder. 

"  §  4.  If  any  person  shall  take,  sell  or  transfer  any  promissory 
note  or  other  negotiable  instrument  not  having  the  words  '  given 
for  a  patent  right,'  written  or  printed  legibly  and  prominently  on 
the  face  of  such  note  or  instrument  above  the  signature  thereto, 
knowing  the  consideration  of  such  note  or  instrument  to  consist  in 
whole  or  in  part  of  the  right  to  make,  use  or  vend  any  patent 
invention  or  inventions  claimed  to  be  patented,  every  such  person 
or  persons  shall  be  deemed  guilty  of  a  misdemeanor  and  upon  con- 
viction thereof,  shall  be  fined  in  any  sum  not  exceeding  $500,  or 
imprisoned  in  the  county  jail  not  exceeding  sixty  days,  or  both,  in 
the  discretion  of  the  court." 

The  defendant  offered  to  show  an  agreement  by  Phelps,  as  a  part 
of  the  consideration,  to  furnish  models,  etc.,  and  a  breach  thereof. 
The  conveyance  of  the  patent,  in  consideration  of  which  this  note 
was  given,  was  made  to  the  defendant  and  to  one  Allend.  The 
court  excluded  the  evidence  on  the  ground  that  the  claim  of  recoup- 
ment was  a  joint  claim  of  defendant  and  Allend.  In  rebuttal  the 
plaintiff  testified  that  he  knew  nothing  of  this  law  of  Pennsylvania 
when  he  purchased  the  note. 

The  plaintiff  asked  the  court  to  direct  a  verdict  for  him.  The 
court  held  that  the  note  was  void  in  its  inception,  and  nonsuited 
the  plaintiff  without  any  motion  by  the  defendant. 

H.  Boardman  Smith,  for  the  plaintiff.  Ignorance  of  the  statute 
law  of  another  State,  is  ignorance  of  fact.  (8  Barb.,  233 ;  40  id., 
474,  475 ;  5  Seld.,  53 ;  15  N.  Y.,  193 ;  1  Hall,  80.)  Grant,  for  the 
argument,  that  this  note  was  illegal,  and  that  the  taking  and  the 
making  of  it,  were  even  felonious ;  this  is  no  defense  against  the 
note,  in  the  hands  of  an  innocent  purchaser  for  value,  before 
maturity,  "  unless  the  note  is  expressly  declared  void  by  statute." 
(Grimes  v.  Hillenbrand,  4  Hun,  354 ;  Hill  v.  Northrup,  4  N.  Y. 
S.  C.  [T.  &  0.],  120;  Vallett  v.  Parker,  6  Wend.,  615  ;  2  R.  S., 
691,  §  6 ;  Stoney  v.  Am.  L.  Ins.  and  T.  Co.,  11  Paige,  635 ;  Rock- 
well v.  Charles,  2  Hill,  499  ;  Merchants'  Bank  _y.  Spaulding,  5 
Seld.,  53  ;  Oneida  Bank  v.  Ontario  Bank,  21  N.  Y.,  495,  COM- 
STOOK,  J. ;  Sanford  v.  Wyckoff,  4  Hill,  442 ;  City  Bank  of  N.  T 


PALMER  y.  MINAR.  345 

THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 

v.  Barnard,  1  Hall,  80-84 ;  Bissell  v.  M.  S.  and  N.  1.  R.  R.  Cy., 
22  N.  Y.,  273,  COMSTOCK,  J. ;  Story's  Promissory  Notes,  §  192 ; 
Edwards  on  Bills  [in.  p.],  337.)  And  the  law  of  commercial  paper 
is  held  to  be  the  same  in  the  State  of  Pennsylvania.  (Creed  v. 
Stevens,  4:  Wharton,  223 ;  Unger  v.  Boas,  1  Harris,  601.)  It  is 
conceded  law  that  a  note  may  be  enforced  by  an  innocent  holder, 
who  purchases  it  for  value  before  maturity,  even  of  the  one  who 
has  gotten  it  by  highway  robbery,  and  from  the  pocket  of  the 
maker,  who  had  never  issued  it.  (Hall  v.  Wilson,  16  Barb,  548  ; 
2  Parsons'  Notes  and  Bills,  267,  268 ;  Story's  Promissory  Notes, 
§§  191, 192.)  And  the  law  is  so  held  in  Pennsylvania.  (Kuhns  v. 
Gettysburg  Nat.  Bank,  68  Penn.  St.,  445.) 

D.  B.  Hill,  for  the  defendant.  The  note  having  been  made, 
executed  and  delivered  in  the  State  of  Pennsylvania,  and  by  its 
terms  payable  there,  it  is  governed  by  the  laws  of  that  State. 
(Curtis  v.  Leavitt,  15  N.  Y.,  227  and  cases  cited  ;  Story  on  Conflict 
of  Laws  [2d  ed.],  §  361,  etc. ;  Bowen  v.  Newell,  13  N.  Y.,  290 ; 
Waldron  v.  Ritchings,  9  Abb.  [N.  S.],  360 ;  Chapman  v.  Robert- 
son, 6  Paige,  627 ;  2  Kent's  Comm.,  457.)  The  fact  that  the  note 
was  subsequently  purchased  by  the  plaintiff  in  this  State,  does  not 
change  the  rule.  (Cloyes  v.  Hooker  6  N.  Y.  S.  C.  [T.  &  C.],  448 ; 
Jewell  v.  Wright,  30  N.  Y.,  259.)  The  note  was  void  in  its  incep- 
tion. It  was  given  in  violation  of  a  statute.  It  is  settled  law  in 
this  State,  that  a  contract  founded  upon  an  unlawful  act,  whether 
it  be  malutn  prohibitum,  or  malum  in  se,  cannot  be  enforced,  but 
is  void.  (Pennington  v.  Townsend,  7  Wend ,  275 ;  Hallett  v. 
Novion,  14  Johns.,  272  ;  Barton  v.  Port  Jackson  and  Union  Falls 
Plank-road  Co.,  17  Barb.,  397 ;  Berran  v.  Tugnot,  5  Sandf.,  153  ; 
Porter  v.  Havens,  37  Barb.,  343 ;  Griffith  v.  Wells,  3  Denio,  226 ; 
Fenlon  v.  Cunningham,  20  How.,  154;  Best  v.  Bauder,  43  id., 
176 ;  Hoyt  v.  Allen,  2  Hill,  322 ;  Conderman  v.  Hicks,  3  Lans., 
108.)  It  was  not  necessary,  to  prevent  the  plaintiff  being  consid- 
ared  a  bonafide  holder,  that  he  should  know  that  the  consideration 
was  illegal.  It  is  sufficient  if  he  knew  what  the  consideration  was. 
Knowing  the  facts  he  was  bound  to  know  the  law.  (Shotwell  v. 
Murray,  1  Johns.  Oh.,  512 ;  Storrs  v.  Barker,  6  id.,  166  ;  Holman 
7.  Johnson,  Cowp.,  341 ;  Story  on  Conflict  of  Laws  [3d  ed.],  §  274.) 
HUN— VOL.  VIII.  44 


846  PALMER  v.  MINAR. 

THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 

LEARNED,  P.  J. : 

There  was  no  evidence  of  an}'  failure  of  consideration,  for  the 
defendant  was  not  allowed  to  prove  the  facts  which  might  have 
shown  this.  The  nonsuit  was  simply  on  the  ground  that  the  note 
was  void  in  its  inception. 

Section  3  of  the  Pennsylvania  statute  enacts  that  whenever  any 
promissory  note  shall  be  given,  the  consideration  of  which  shall 
consist,  etc.,  "  the  words  '  given  for  a  patent  right '  shall  be  promi- 
nently and  legibly  written  or  printed  on  the  face  of  such  note  or 
instrument  above  the  signature  thereto,  and  such  note  or  instru- 
ment in  the  hands  of  any  purchaser  or  holder  shall  be  subject  to 
the  same  defenses  as  in  the  hands  of  the  original  owner  or  holder." 
These  words,  "  such  note  or  instrument,"  in  the  place  where  they 
are  last  used,  must  mean  a  note  or  instrument  bearing  the  words 
u  given  for  a  patent  right."  They  do  not  include  a  note  given  for 
the  consideration  of  a  sale  of  a  patent,  which  does  not  bear  these 
words.  On  this  ground  the  learned  justice  excluded,  in  the  present 
case,  the  evidence  of  failure  of  consideration  and  the  like.  This 
must  be  the  correct  construction.  For  if  notes,  not  bearing  these 
words,  were  open  to  such  defense  in  the  hands  of  honajide  holders, 
the  requirement  of  the  statute  that  these  words  should  be  written 
on  the  note  would  be  needless. 

The  fourth  section  of  the  same  act  declares  that  it  is  a  misde- 
meanor punishable  by  fine  and  imprisonment,  for  any  person 
knowing  the  consideration  of  such  note  or  instrument  to  consist  of 
such  right  to  use  a  patent,  to  "take,  sell  or  transfer"  any  note, 
etc.,  not  having  on  it  the  words  above  mentioned.  Nothing  is  said 
in  this  section  of  the  making  of  such  a  note. 

The  taking  of  this  note  by  the  plaintiff  and  the  transfer  to  him 
do  not  appear  to  have  taken  place  in  Pennsylvania,  and  are  there- 
fore not  affected  by  this  act.  The  only  question  is  as  to  the  effect  on 
the  plaintiff's  rights  of  the  taking  this  note  in  Pennsylvania  by 
Phelps,  in  whose  hands  it  had  its  inception. 

It  is  not  necessary  to  dispute  the  proposition  that  in  the  hands 
of  Phelps  this  note  would  have  been  void.  (Swords  v.  Owen,  43 
How.,  176,  and  cases  there  cited  ;  and  Conderman  v.  Hicks,  3 
Lans.,  108.)  But  all  those  cases  were  decided  between  the  original 


PALMER  v.  MINAR.  347 

THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 

parties,  or  between  those  who  stood  in  no  better  position  than  the 
original  parties. 

But  in  the  hands  of  a  bona  fide  holder,  without  notice,  illegality 
of  consideration  is  not  necessarily  a  defense.  (Grimes  v.  Hillen- 
brand, 11  S.  0.  N.  Y.,  354 ;  Hill  v.  Northrup,  4  N.  T.  S.  0.  [T.  & 
C.],  120 ;  Vallett  v.  Parker,  6  Wend.,  615  ;  Sa/ord  v.  Wyckoff,  4 
Hill,  442.)  And  this  statute  does  not  declare  the  note  void,  noi 
does  it  even  declare  the  giving  of  the  note  to  be  a  misdemeanor. 

The  defendant,  however,  insists  that  these  cases  do  not  apply  ; 
because  he  says  that  the  plaintiff  knew  what  the  consideration  was. 
Now,  if  the  invalidity  of  the  note  depended  on  the  laws  of  this 
State,  then  one  who  here  took  the  note,  knowing  the  facts  which 
made  the  note  illegal,  would,  of  course,  be  chargeable  with  knowl- 
edge of  the  illegality.  But,  in  the  present  case,  the  alleged  inva- 
lidity depends  on  the  statute  of  Pennsylvania.  The  existence  of 
such  statute  is  a  matter  of  fact,  not  a  matter  of  law,  as  to  persons 
living,  and  entering  into  contracts,  here.  The  plaintiff  proved 
affirmatively  that  he  did  not  know  of  this  statute.  The  bona  fides, 
then,  in  the  purchase  of  the  note  is  not  taken  away  by  his  mere 
knowledge  that  the  note  was  given  for  a  patent  right. 

And  it  must  be  further  noticed  that  in  this  case  there  is  not  even 
any  illegality  of  consideration.  It  is  only  the  taking  of  the  note 
which  is  to  be  in  violation  of  a  statute.  And,  in  addition  to  the 
plaintiff's  want  of  knowledge  of  the  Pennsylvania  statute,  it  does 
not  appear  that  he  knew  the  fact  that  the  taking  of  the  note  by 
Phelps  was  within  that  State.  Beyond  the  limits  of  that  State 
such  taking  would  not  be  a  misdemeanor. 

There  should  be  a  new  trial,  costs  to  abide  the  event. 

Present  —  LEARNED,  P.  J.,  BOABDMAN  and  BOOKES,  JJ, 
New  trial  granted,  costs  to  abide  event. 


848  PHILLIPS  v.  DUSENBERRY. 

THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 


GEORGE  PHILLIPS,  APPELLANT,  v.  CHARLES  E.  DUSEN- 
BERRY  AND  JESSE  B.  ANTHONY,  IMPLEADED,  ETC., 
RESPONDENTS.* 

Infant — judgment  against — effect  of — Guardian   ad  Utem  —  neglect  of,  to  pleaa 

infancy. 

A  judgment  rendered  against  an  infant  who  is  duly  summoned  and  has  a  guardian 
ad  Utem  appointed,  who  accepts  the  trust,  will  bind  and  conclude  him  as  if  he 
were  an  adult 

The  practice  of  giving  minors  six  months  after  coming  of  age  to  show  cause 
against  decrees  rendered  against  them  during  their  minority,  applied  only  to 
actions  in  equity,  and  not  to  actions  at  law  for  the  recovery  of  money  due  on 
contract,  and  this  rule  is  now  abrogated  by  statute,  providing  for  the  appoint- 
ment of  guardians  ad  Utem. 

APPEAL  from  a  judgment  in  favor  of  the  defendant  entered  upon 
a  trial  before  the  court  at  Special  Term.  The  plaintiff,  one  of  the 
firm  of  E.  &  G.  Phillips,  was,  previous  to  July  30,  1874,  sued  by 
the  defendants  before  a  justice  of  the  peace  of  Montgomery  county. 
The  summons  was  personally  served,  and  upon  his  failure  to  appear, 
a  guardian  ad  litem  was  appointed  for  him  and  judgment  was  after- 
ward entered  against  him.  No  appeal  was  taken  from  the  judgment. 
This  action  was  brought  in  equity  to  set  it  aside  on  the  ground  of  the 
infancy  of  the  plaintiff  at  the  time  of  the  rendering  of  the  judgment 
against  him.  The  guardian  ad  litem  knew  that  the  plaintiff  was  an 
infant,  but  did  not  interpose  that  defense.  The  case  was  affirmed 
at  the  General  Term,  upon  the  following  opinion  of  BOCKES,  J., 
delivered  at  the  Special  Term. 

BOCKES,  J. : 

The  judgment  rendered  by  the  justice  of  the  peace  against  the 
plaintiff  (then  a  minor)  and  his  partner,  Ervin  Phillips,  was  neither 
void  nor  erroneous.  The  action  was  on  contract.  The  amount 
claimed  was  within  the  jurisdiction  of  the  court.  The  summons 
was  duly  and  personally  served  on  both  defendants,  and  a  guardian 
ad  litem  was  appointed  for  the  minor  (the  present  plaintiff),  and  he 
nccepted  the  trust.  Thus  it  appears  that  the  justice  had  jurisdic- 
tion of  the  person  and  subject-matter  of  the  action,  and  all  the 

•Decided  May  terra,  1876. 


PHILLIPS  v.  DUSENBERRY.  349 

THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 

proceedings  required  by  law  were  observed.  Nor  is  the  judgment 
attacked  for  fraud.  It  is  not  alleged  that  the  judgment  was 
fraudulently  obtained. 

The  right  to  have  the  judgment  stayed  or  discharged  as  to  the 
plaintiff,  is  put  on  the  sole  ground  of  his  infancy  at  the  time  the 
debt  was  contracted,  and  when  the  judgment  was  rendered  against 
him,  with  the  additional  facts,  perhaps,  that  the  debt  was  not  for 
necessaries  ;  that  he  remained  a  minor  after  judgment  was  rendered 
until  the  time  to  appeal  had  elapsed,  and  that  the  judgment  was 
rendered  in  Justice's  Court,  wherein  he  was  remediless  by  any  pro- 
ceeding which  could  be  there  taken. 

The  plaintiff  was  summoned  to  answer  before  the  justice  where 
he  could  have  interposed  the  defense  of  infancy.  This  he  and  his 
guardian  ad  litem  omitted  to  do,  and  judgment  went  against  him. 
Is  he  concluded  by  such  judgment  ?  It  is  undeniable  *hat  the 
defense  of  infancy  is  personal  to  the  infant.  He  may  or  may  not 
insist  upon  it  to  defeat  his  contracts.  A  party  cannot  plead  the 
infancy  of  his  co-defendant. 

With  these  preliminary  remarks  it  is  proposed  to  examine  a  few 
of  the  many  cases  bearing  more  or  less  directly  upon  the  subject 
under  examination.  The  defense  of  infancy,  like  other  matters  of 
defense,  should  be  put  forward  on  the  first  opportunity. 

In  Graham,  v.  Pinckney  (7  Robt.,  147),  the  defendant,  who  had 
appeared  by  guardian,  was  in  default  in  interposing  an  answer. 
The  court  refused  to  let  him  in  on  the  defense  of  infancy,  and 
denied  a  motion  to  set  aside  the  judgment  entered  against  him  by 
default  for  want  of  an  answer.  I  do  not  approve  of  this  decision, 
as  I  think  the  motion,  having  been  in  the  action  against  the  infant 
and  the  default  excused,  should  have  been  granted  on  terms  covering 
the  expense  of  the  default  and  motion.  But  the  case  is  cited  to 
show  that  the  defense  of  infancy  should  be  interposed  on  the  first 
opportunity. 

In  Blake  v.  Douglass  (27  Ind.,  416),  it  was  held  that  infancy, 
being  a  personal  privilege,  might  be  waived,  and  that  if  not 
pleaded,  a  judgment  against  an  infant  would  be  binding  upon  him. 
The  action  was  brought  to  enforce  a  judgment.  The  defendant  set 
up,  by  way  of  defense,  that  at  the  time  of  the  rendition  of  the 
judgment,  he  was  a  minor  and  did  not  appear  in  the  action,  either 


350  PHILLIPS  v.  DUSENBERRY. 

THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 

in  person  or  by  attorney,  and  that  the  judgment  was  taken  against 
him  by  default.  The  court  overruled  this  alleged  defense,  hold- 
ing that  the  facts  averred  only  showed  error  in  the  original  judg- 
ment, which  should  have  been  corrected  in  that  suit.  In  the 
opinion  of  the  court,  it  is  stated  "  that  the  infancy  of  the  appellant 
might  have  been  a  good  defense,  if  he  had  appeared  and  set  it  up 
in  the  original  suit ;  that  it  was  a  personal  privilege,  and  having 
failed  to  avail  himself  of  it  at  the  proper  time,  by  suffering  judg- 
ment to  be  taken  against  him  by  default,  the  judgment  is  binding 
on  him. 

The  action  in  Wrisleys  v.  Kenyan  (28  Yennont,  5)  was  audita 
querela  to  set  aside  a  judgment  rendered  before  a  justice  of  the 
peace.  The  ground  of  proceeding  was  that  the  party  was  a  minor, 
and  that  no  guardian  ad  litem  was  appointed  for  him  before  the 
justice.  It  turned  out  on  the  trial,  that  the  minor  was  sued  before 
the  justice  jointly  with  his  father  in  an  action  of  trespass  ;  that  his 
father,  his  natural  guardian,  appeared  and  took  upon  himself  the 
defense  of  the  suit,  for  the  infant  as  well  as  for  himself.  The 
judgment  was  held  to  be  conclusive  upon  the  infant. 

In  this  case,  the  action  before  the  justice  was  trespass,  and  infancy 
was  therefore  no  defense;  but  the  case  is  an  authority  on  the  ques- 
tion of  the  conclusiveness  of  a  judgment  against  an  infant  who  is 
summoned  and  defends  by  guardian. 

To  the  same  effect  is  the  decision  in  Robinson  v.  Swift  (3  Ver 
inont,  283).  Mr.  Wait,  in  his  Law  and  Practice  (vol.  2,  p.  279), 
says  in  effect,  that  a  judgment  against  an  infant,  who  appears  and 
defends  by  guardian,  will  be  deemed  as  effectual  as  if  rendered 
against  an  adult. 

In  the  case  of  an  infant  his  proper  defense  devolves  upon  his 
guardian  ad  litem,  who,  by  accepting  the  trust,  becomes  obligated 
to  its  due  performance. 

So  it  was  held  in  Knickerbacker  v.  De  Freest  (2  Paige,  304), 
"  that  if  a  guardian  neglect  his  duty  in  consequence  of  which  the 
rights  of  the  infant  are  not  properly  attended  to,  or  are  sacrificed, 
he  may  be  punished  for  his  neglect,  and  he  will  also,  in  such  case, 
be  liable  to  the  infant  for  all  damages  he  may  sustain."  These 
authorities  seem  to  settle  the  point,  that  a  judgment  rendered  against 
»n  infant  who  is  duly  summoned  and  has  a  guardian  ad  litem 


PHILLIPS  v.  DUSENBERRY.  851 

THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 

appointed,  who  accepts  the  trust,  will  bind  and  conclude  him  the 
same  as  if  he  were  an  adult.  The  practice  which  gave  minors  six 
months  after  coming  of  age  within  which  to  show  cause  against 
decrees  rendered  against  them  during  their  minority,  had  application 
to  actions  in  equity  (Tyler  on  Inf.  and  Cov.,  §  148,  and  cases 
there  cited) ;  never,  as  I  am  aware,  to  actions  at  law  for  the  recovery 
of  money  on  contract.  And  there  existed  at  one  time  the  right  of 
the  parol  to  demur,  the  effect  of  which  was  to  stay  proceedings  in 
the  action  against  the  infant  until  he  should  arrive  of  full  age. 
The  form  of  this  plea  is  given  in  Flasket  v.  Beeby  (4  East,  485). 
This  subject,  the  right  of  the  parol  to  demur  and  the  giving  a  day 
to  the  infant  after  he  shall  arrive  of  age  to  show  cause,  is  con- 
sidered in  Harris  v.  Youman  (1  Hoff.  Oh.,  178).  But  it  is  sufficient 
here  to  say  that  neither  of  these  proceedings  has  any  application  to 
the  case  in  hand,  as  will  be  seen  on  reference  to  section  148,  Tyler 
on  Infancy,  above  cited,  with  the  authorities  there  alluded  to.  The 
statute  providing  for  the  appointment  of  guardians  ad  litem  for 
infant  defendants  seems  to  have  superseded,  to  a  very  great  extent, 
if  not  entirely,  such  practice.  (Fenier  v.  Wyse,  3  Blaud's  Oh. 
[Maryland],  p.  51.)  Nor  am  I  aware  of  any  case  in  this  State  where 
a  judgment  for  the  recovery  of  money  due  on  contract  has  been  set 
aside,  or  stayed  by  a  new  suit,  after  the  infant  defendant  had  arrived 
of  full  age,  on  the  ground  that  it  was  rendered  against  him  while 
yet  a  minor.  Relief  will  be  granted  to  infants  and  adults  alike  for 
fraud  in  the  obtaining  of  judgments.  (State  of  Michigan  v.  Phce- 
nix  jBank,  33  N.  Y.,  9,  25  et  seq.  and  cases  there  cited.)  But  as  Judge 
GROVEK  remarks,  in  New  York  and  Harlem  Railroad  Company  v. 
Haws  (56  N.  Y.,  175-181):  "Equity  does  not  interfere  to  restrain 
the  collection  of  a  judgment  upon  the  ground  that  it  was  erroneously 
rendered,  but  only  upon  the  ground  that  enforcing  it  would  be  con- 
trary to  equity  and  good  conscience,  as  shown  by  facts  of  which  the 
party  could  not  avail  himself  as  a  defense,  or  where  he  was  pre- 
vented from  so  doing,  without  any  fault  of  his  own,  by  the  fraud 
of  the  other  party."  (Truly  v.  Wanzer,  5  How.  [U.  S.],  141.)  A 
judgment  cannot  be  impeached  for  error  by  collateral  action.  On 
this  point  the  authorities  are  numerous  and  uniform. 

I  am  cited  to  several  cases  holding  that  an  infant  is  not  bound 
by  the  answer  or  the  admissions  of  his  guardian.     The  following 


352  PHILLIPS  y.  DUSENBERKY. 

THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 

are  a  few  of  them :  Wright  v.  Miller  (1  Sandf.  Ch.,  103) ;  Stephens 
v.  Van  Buren  (1  Paige,  479) ;  James  v.  James  (4  id.,  115) ;  Howell 
v.  Mills  (53  N.  Y.,  322).  The  points  decided  in  these  cases  and 
in  others  where  similar  language  is  employed,  is,  that  the  court  will 
not  make  a  decree  against  an  infant  on  the  answer  or  admission  of 
his  guardian  ad  litem ;  but  will  require  all  the  material  facts 
necessary  thereto,  to  be  proved.  As  was  said  in  one  of  the  cases 
cited,  where  there  are  infant  defendants,  and  it  is  necessary,  in  order 
to  entitle  the  complainant  to  the  relief  he  prays,  that  certain  facts 
should  be  before  the  court  —  such  facts,  although  they  might  be 
the  subject  of  admissions  on  the  part  of  the  adults,  must  be  proved 
against  infants.  It  would  be  improper,  perhaps  erroneous,  to  receive 
admissions  of  such  facts  from  the  guardian  ad  litem  against  his 
ward. 

But  these  cases  do  not  hold,  nor  am  I  aware  of  any  which  do 
hold,  that  in  case  the  court  should  improperly  and  erroneously  act 
upon  the  answer  or  admission  of  the  guardian,  without  other  proof 
of  the  facts,  the  judgment  based  thereon  could  be  impugned  for 
each  cause  by  the  infant  in  a  new  suit  brought  by  him  for  that  pur- 
pose. The  judgment  in  such  case  would  be  conclusive  on  all  the 
parties  to  it,  until  reversed  on  writ  of  error  or  appeal.  In  case  the 
judgment  should  be  assailed  fur  fraud,  and  it  should  be  alleged  that 
it  was  fraudulently  obtained  through  connivance  and  complicity  of 
the  guardian  who  should  reap  advantage  therefrom,  then  the  fact 
that  he  procured  the  judgment  or  decree  on  his  own  admission, 
without  other  proof  of  the  material  facts,  would  have  significance 
as  bearing  on  his  alleged  fraudulent  conduct.  But,  as  has  been 
above  observed,  this  action  is  not  brought  to  vacate  and  set  aside 
the  judgment  rendered  by  the  justice,  on  the  ground  that  it  was 
fraudulently  obtained.  The  cases  cited  to  the  effect  that  the  answer 
and  admissions  of  a  guardian  ad  litem  will  not  be  held  binding  on 
the  infant  by  the  court,  as  a  basis  of  a  judgment  or  decree,  have  no 
application  to  the  case  in  hand. 

The  question  in  this  case  rests  on  the  sole  ground  that  the  plain- 
tiff in  this  suit  was  an  infant  when  the  judgment  was  rendered 
against  him  and  his  co-defendant  in  the  Justice's  Court,  and  that 
his  guardian  ad  litem  neglected  to  interpose  for  him  the  defense  oi 
infancy. 


PHILLIPS  v.  DUSENBERRY.  353 

THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 

As  above  stated,  fraud  in  the  obtaining  of  the  judgment  is  not 
alleged  ;  hence  all  consideration  bearing  on  such  a  case  may  be  laid 
aside  or  passed  over.  Nor  is  it  a  case  for  a  bill  of  review  (2  Barb. 
Ch.  Prac.,  90,  91) ;  nor  can  the  action  be  sustained  in  the  nature 
of  an  audita  querela.  This  common-law  proceeding  may  now  be 
resorted  to  where  something  has  occurred  since  the  rendition  of  the 
judgment,  making  its  enforcement  unjust  or  inequitable,  or  when 
some  fact  exists  which  could  not  have  been  pleaded  in  the  former 
suit.  (Mallory  v.  Norton,  21  Barb.,  424-435  ;  3  Blacks.  Com., 
405.)  This  case  is  not  brought  upon  either  of  these  grounds. 
There  is  no  pretense  that  any  thing  has  occurred  since  the  rendition 
of  the  judgment  by  the  justice  making  its  enforcement  inequitable, 
nor  that  any  fact  now  exists  which  could  not  have  been  pleaded 
before  him.  The  defense  of  infancy  could  have  been  interposed  in 
the  former  suit,  and  that  was  the  proper  place  to  set  it  up.  I  am 
referred  to  a  remark  of  the  chancellor  in  Mason  v.  Denison  (15 
Wend.,  64,  68),  to  the  effect  that  an  infant  may  have  relief  by  audita 
querela  against  a  judgment  rendered  against  him  on  setting  up  his 
infancy.  The  remark  is  as  follows  :  "  He  may  also  obtain  relief,  so 
far  as  his  interest  in  the  property  is  concerned,  by  the  common-law 
writ  of  audita  querela" 

The  observation  was  made  as  to  an  infant  defendant  who  had  not 
been  summoned,  but  against  whom  a  recovery  had  been  had  as  a 
joint  debtor,  his  co  defendant  having  been  served  with  process.  On 
this  judgment  the  joint  property  of  the  defendants  was  liable  to 
seizure  and  sale,  and  the  question  under  consideration  by  the  chan- 
cellor was,  how  the  infant  in  such  case  could  avail  himself  of  his 
infancy  to  protect  his  individual  interest  in  the  joint  property.  It 
will  be  observed  that  the  infant  was  not  summoned  ;  consequently 
had  not  been  called  upon  in  court  to  answer.  On  studying  the  case, 
it  will  be  seen  that  the  chancellor  put  the  right  to  an  audita  querela 
on  such  fact.  Not  having  been  brought  in  as  a  defendant  in  the 
former  suit,  he  had  had  no  opportunity  to  plead  his  infancy  ;  hence 
a  fact  constituting  a  defense,  his  infancy,  could  not  have  been  pleaded 
in  that  suit,  and  consequently,  as  the  chancellor  remarked,  he 
could  have  relief  on  audita  querela.  Not  having  been  summoned, 
he  had  had  no  opportunity  to  plead  his  infancy,  and  it  was 
not  competent  for  his  co-defendant  to  set  it  up.  ( Van  Bramet 
HUN— VOL.  VIII.  45 


854  PHILLIPS  v.  DUSENBERRY. 

THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 

v.  Cooper,  2  Johns.,  279 ;  Hartness  v.  Thompson,  5  id.,  160 ; 
Slooum  v.  Hooker,  13  Barb.,  536.)  It  may  be  well,  perhaps, 
to  follow  the  chancellor  a  little  in  his  reasoning,  as  It  will  be 
seen  at  once  that  he  put  stress  on  the  fact  that  the  infant  had 
not  been  summoned  ;  and  he  concluded  (doubtless  correctly),  that 
in  such  case  the  infant  might  have  an  audita  querela  to  obtain 
relief  against  a  judgment  rendered  against  him  ;  to  adopt  his  own 
language,  "  upon  the  ground  that  he  had  no  day  in  the  court  of 
law,  and  would  not  be  admitted  to  make  his  defense  there."  In 
citing  a  case  where  relief  had  been  obtained  on  audita  querela,,  the 
chancellor  said,  that  he  presumed  the  judgment  against  the  infant 
as  to  which  relief  was  sought,  must  have  been  rendered  against 
him  "without  actual  notice  and  appearance  by  guardian" — justly 
and  fairly  implying  that  if  the  infant  had  been  served  with  process 
and  had  appeared  by  guardian,  he  would  be  deemed  to  have  had 
his  day  in  the  court  of  law,  and  therefore  could  not  thereafter  be 
heard  on  audita  querela. 

Now,  in  the  case  at  bar,  the  infant  was  summoned,  and  appeared 
in  the  court  of  law  by  guardian.  He  was  called  upon  according  to 
the  forms  of  law  to  answer,  and  put  forward  his  defense  to  the 
plaintiffs  claim.  The  evident  purpose  of  the  statute  requiring  the 
appointment  of  guardians  ad  litem  for  infant  defendants,  was  to 
put  them  to  their  defense  immediately,  whatever  the  defense  might 
be,  and  to  conclude  them  when  represented  by  guardian  in  regard 
to  their  defenses.  What  is  gained  by  the  action  if  the  judgment 
rendered  therein  may  be  impeached  by  the  infant  at  will  by  a  new 
suit  for  that  purpose  ?  The  object  of  appointing  a  guardian  ad 
litem  for  an  infant,  is  to  place  him  on  equal  footing  with  adults  as 
regards  any  matters  of  defense  which  he  may  have.  It  is  the  duty 
of  the  guardian  to  interpose  for  him  all  his  defenses,  and  having 
accepted  the  trust,  he  becomes  liable  for  all  damages  occasioned  by 
his  neglect.  It  was  said  by  the  chancellor,  in  Knickerbocker  v. 
De  Freest  (2  Paige,  304),  above  cited,  that  it  was  his  duty  in  every 
case  to  ascertain  from  the  infant  and  his  friends,  or  from  other  pro- 
per sources  of  information,  what  are  the  legal  and  equitable  rights 
of  his  ward ;  and  that  if  a  special  answer  be  necessary  or  advisable 
for  the  purpose  of  bringing  the  rights  of  the  infant  properly  before 
the  court,  it  is  his  duty  to  put  in  such  an  answer.  What  need  of 


PHILLIPS  v.  DUSENBERRY.  355 

THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 

all  this  care  and  attention  if  the  judgment  to  be  rendered  in  the 
action  is  to  have  force  and  effect  only  at  the  option  of  the  infant, 
thereafter  to  be  exercised  by  him?  The  law  requiring  the  appoint 
ment  of  guardians  ad  litem  for  infant  defendants  was  intended,  in 
my  judgment,  to  place  them  before  the  court,  in  the  same  situation 
as  to  their  defenses  as  if  they  were  adults  ;  and  it  follows  that  they 
must  put  forward  their  defenses,  being  called  upon,  and  having  the 
opportunity  to  do  so ;  and  that  the  judgment  regularly  rendered 
against  them  concludes  them  the  same  as  it  would  persons  of  full 
age.  If  I  am  right  in  this  conclusion,  the  complaint  in  this  case 
must  be  dismissed. 

The  two  other  cases  (Phillips  v.  Hier  et  al.  and  Phillips  Y. 
Hicks  et  al.),  submitted  at  the  same  time  with  this  one,  above  con- 
sidered, resting  on  the  same  state  of  facts,  substantially,  must  have 
the  same  direction. 

J.  E.  Dewey,  for  the  appellant. 
Henry  A.  Merritt,  for  the  respondents. 

Present  —  LBAENED,  P.  J.,  and  BOABDMAN,  J.  BOGKES,  J.,  not 
acting. 

Judgment  affirmed  with  costs. 


MEMORANDA 


OF 


OASES   3STOT    REPORTED    IN   FULL. 


ANNIE  E.  EVERETT,  RESPONDENT,  v.  FRANK  L.  LOCK- 
WOOD,  APPELLANT. 

Payment  of  instalments  under  contract — in  action  of  ejectment  brought  for  nonpay- 
ment —  burden  of  proof  as  to  payments. 

APPEAL  from  a  judgment  in  favor  of  the  plaintiff,  entered  upon 
the  report  of  a  referee. 

The  action  was  ejectment,  brought  by  the  plaintiff  as  heir  at  law 
of  Richard  Everett,  deceased,  to  recover  the  possession  of  certain 
premises  which  the  defendant  occupied  under  a  written  contract  of 
purchase  from  the  deceased.  The  complaint  set  up  the  contract, 
possession  under  it  and  a  failure  to  pay  installments.  The  answer 
admitted  the  contract  and  possession,  averred  payment  of  an 
installment,  and  full  payment  of  all  that  was  due  on  the  contract  at 
the  time  of  commencing  the  action.  The  principal  question  pre- 
sented by  the  appeal  was,  whether  it  was  incumbent  upon  the 
plaintiff  to  prove  that  the  payments  had  not  been  made,  or  upon 
the  defendant  to  show  that  they  had. 

The  court  at  General  Term  say :  "  Under  these  pleadings,  the 
averment  of  payment  was  an  affirmative  allegation  on  the  part  of 
the  defendant ;  and,  like  other  averments  of  payment,  it  should  be 
proved  by  the  party  who  alleges  it.  The  only  issue  on  the  plead- 
ings appears  to  be  the  issue  of  payment  on  the  contract.  And  on 
pleadings  thus  framed  we  think  that  it  was  for  the  defendant  to 
prove  the  payment  which  he  had  averred." 

Youmans  &  Niles,  for  the  appellant.  GHXbert  <&  Maynard,  for 
the  respondent. 

Opinion  by  LEARNED,  P.  J. 


PEOPLE  EX  BEL.  STANTON  v.  HORTON.  357 

THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 
Present  —  LEARNED,  P.  J.,  BOCKES  and  BOARDMAN,  JJ. 

Judgment  modified  by  reducing  damages  to  six  cents,  and  ai 
modified  affirmed,  without  costs  of  appeal. 


THE    PEOPLE    EX    EEL.    ASA    STANTON,    APPELLANT,  v. 
LUCIEN  HORTON,  AND  OTHERS,  REFEREES,  ETC.,  RESPONDENTS. 

Garden,  meaning  of — Highway  —  land  taken  for  —  1  R.  8.,  574,  §  57. 

APPEAL  from  an  order  or  judgment  of  the  Special  Term,  confirm- 
ing the  proceedings  of  the  defendants  as  referees,  in  affirming  an 
order  of  commissioners  of  highways  in  the  alteration  of  a  highway, 
whereby  a  portion  of  relator's  land  was  taken,  which  he  claimed  to 
be  a  garden. 

The  court  at  General  Term  say :  "  The  only  objection  urged  is, 
that  a  portion  of  relator's  garden  was  taken  in  the  process  of  widen- 
ing and  straightening  the  highway.  The  statute  forbids,  that  where 
the  part  taken  has  been  used  as  a  garden  for  the  previous  four  years. 
(1  R.  S.,  574,  §  57.)  It  is  not  claimed  that  the  relator  consented. 
Upon  this  point  a  number  of  witnesses  were  examined  upon  each 
aide.  The  commissioners,  jury  and  referee  all  decided  from  such 
evidence,  aided  by  an  inspection  of  the  premises,  that  the  part 
taken  never  had  been  cultivated  as  a  garden  for  the  period  required. 
This  being  a  decision  upon  a  conflict  of  evidence,  must  be  conclu- 
sive upon  the  court.  (Baldwin  v.  City  of  Buffalo,  35  N.  Y., 
375  ;  1  R.  S.,  519,  §  89.) 

But  upon  the  evidence  taken,  it  is  quite  evident  that  the  strip  of 
land  taken  had  not  been  used  as  a  garden.  It  had  been  planted 
with  potatoes  and  corn,  and  constituted  part  of  an  inclosure  in 
which  was  a  garden,  and  in  that  sense  only  was  a  part  of  a  garden. 
Such  is  the  weight  of  the  evidence  given  on  each  side.  This  does 
not  make  it  a  garden  within  the  meaning  of  the  statute.  That,  in 
the  language  of  Judge  EABL,  'is  a  piece  of  ground  appropriated 
to  the  cultivation  of  herbs  or  plants,  fruits  and  flowers.  *  *  * 
It  is  not  sufficient  that  the  land  is  inclosed  with  a  garden,  but  it 
must  be  a  part  of  a  cultivated  garden.'  (People  ew  rel.  Cooke  v. 
Comma,  of  Highways,  57  N.  Y.,  550.)  The  same  idea  is  conveyed 


858  FLEMING  v.  D.  &  H.  CANAL  CO. 

THIBD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 

by  BBONSON,  J.,  in  People  v.  Judges  of  Dutchess  (23  Wend.,  361). 
4  It  does  not  follow  that  the  whole  field  is  an  orchard  because  there 
are  fruit  trees  in  some  part  of  it.? 

The  conclusion  that  this  was  a  garden  should  be  irresistible  tc 
induce  the  court  to  reverse  the  decisions  of  the  commissioners  and 
referees  who  have  had  the  advantage  of  personal  inspection  of  the 
premises  taken,  and  have  seen  and  heard  the  witnesses  who  have 
testified  upon  the  subject.  The  evidence  falls  far  short  of  any  such 
urgent  force,  and  as  I  have  said  impresses  me  in  quite  the  contrary 
direction. 

The  order  or  judgment  appealed  from  should  therefore  be 
affirmed,  with  costs  against  the  relator.  (People  v.  fuller,  40 
How.,  37.)" 

11.  JJostwick,  for  the  appellant.  D.  T.  JSdaton,  for  the 
respondents. 

Opinion  by  BOABDMAN,  J. 

Present  —  LEABNED,  P.  J.,  BOABDMAN  and  BOOKES,  JJ. 

Order  and  judgment  affirmed,  with  costs  against  the  relator. 


OLIVER  FLEMING  AND  HENRY  C.  GREGORY,  RESPOND- 
ENTS, «.  THE  PRESIDENT,  ETC.,  OF  THE  DELAWARE 
AND  HUDSON  CANAL  COMPANY,  APPELLANTS. 

Evidence  —  Damages — amount  of,  to  be  determined  by  the  court — witness  should  not 

be  asked  to  state  it. 

APPEAL  from  a  judgment  in  favor  of  the  plaintiff,  entered  on 
the  direction  of  a  referee. 

The  complaint  charges  that,  on  or  about  the  24th  day  of  April, 
1873,  the  plaintiffs  delivered  to  the  company,  at  Unadilla,  N.  Y.,  a 
car  load  of  cattle,  on  an  agreement  with  the  company  to  carry 
them  over  the  railroad  run  under  its  management,  to  the  city  ot 
Albany,  promising  to  have  the  cattle  at  the  latter  place  the  fol- 
lowing morning,  in  time  for  transhipment  to  Newburgh;  that 
the  company  omitted  and  neglected  so  to  convey  the  cattle,  by 
reason  whereof  they  were  injured,  and  the  plaintiffs  were  put  tc 


FLEMING  y.  D.  &  H.  CANAL  CO.  359 

THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 

increased  expense.  The  answer  was  a  general  denial,  and,  further, 
that  the  cattle  were  conveyed  under  a  special  agreement,  exempting 
the  company  from  the  injuries  and  damage  complained  of.  On  the 
trial  evidence  was  given,  on  the  part  of  the  plaintiffs,  tending  to 
prove  the  alleged  contract,  also  the  delay,  and  consequent  damages. 
Answering  evidence  was  given  on  the  part  of  the  company. 

Upon  the  trial,  the  following  questions  were  put  on  the  part  of 
tthe  plaintiffs,  to  wit :  "  As  it  was,  what  expenses  were  you  neces- 
sarily put  to  in  feeding  and  taking  care  of  the  cattle  at  Albany, 
until  the  next  Newburgh  boat  went  out  3  How  much  less  were  these 
cattle  worth  on  their  arrival  at  Albany,  by  reason  of  this  unusual 
shrinkage  ?"  The  questions  were  both  allowed  against  the  defend- 
ants' objection,  and  exceptions  to  the  rulings  were  duly  entered. 
The  answer  to  the  first  was,  "  twenty  dollars  twenty-five  cents, 
or  twenty  dollars  seventy-five  cents ; "  and  to  the  second,  "  from 
three  dollars  to  five  dollars  per  head  on  the  cows." 

The  referee  found  for  the  plaintiffs,  awarding  $108.25  damages, 
allowing,  probably,  the  medium  between  three  dollars  and  five 
dollars,  to  wit,  four  dollars  per  head  on  the  twenty-two  cattle,  for 
the  "  unusual  shrinkage,"  and  twenty  dollars  twenty-five  cents  for 
the  expenses  "necessarily  put  to  in  feeding  and  taking  care  of  the 
cattle  at  Albany,"  until  the  Newburgh  boat  went  out. 

The  court  at  General  Term  say  :  "  In  regard  to  one  question,  the 
witness  had  been  interrogated  as  to  the  time  and  circumstances  of  the 
delay  at  Albany,  and  as  to  the  fact  of  feeding  and  caring  for  the  cattle 
there.  This  was  all  well  and  proper.  Then  came  the  question  : 
'As  if  was,  what  expenses  were  you  necessarily  put  to  in  the  feeding 
and  taking  care  of  the  cattle  at  Albany,  until  the  next  Newburgh 
boat  went  out  ? '  The  answer  was :  '  Twenty  dollars  and  twenty -five 
cents,  or  twenty  dollars  and  seventy-five  cents.'  Thus  the  entire 
Bubject  of  that  damage  was  left  to  the  answer  of  the  witness.  His 
evidence  declared  the  amount  of  damage.  He  was  allowed  to 
state  the  facts  of  the  case,  and  to  determine  the  question  of  neces- 
tary  expenses,  and  then  taking  the  case  '  as  it  was,'  to  instruct  the 
referee  as  to  the  amount  of  damages  he  should  allow  ;  and  judging 
from  fair  inference,  the  referee  accepted  the  witness'  conclusion. 
The  amount  of  damage,  after  the  facts  of  the  case  were  fully- 
detailed,  rested  with  the  referee.  His  judgment  on  that  question 


860  FLEMING  v.  D.  &  H.  CANAL  CO. 

THIRD  DEPARTMENT,  SEPTEMBER  TERM,  1876. 

was  invoked,  and  it  was  improper  to  yield  it  to  the  opinion  of  the 
witness.  Tn  effect,  the  witness  was  allowed  to  state  how  much  the 
plaintitfs  ought  to  recover  in  that  case  for  feeding  and  taking  care 
of  the  cattle  at  Albany.  Witnesses  cannot  be  allowed  to  give  their 
opinion  upon  questions  which  belong  exclusively,  like  a  question 
of  damages,  to  a  jury  or  referee.  This  rule  as  to  the  admission  of 
evidence  is  too  familiar  to  admit  of  the  citation  of  authorities.  The 
other  question,  admitted  against  objection,  was  also  of  doubtful 
propriety,  to  say  the  least  of  it.  It  was  as  follows  :  '  How  much 
less  were  these  cattle  worth,  on  their  arrival  at  Albany,  by  reason 
of  this  unusual  shrinkage? '  The  answer  was :  '  From  three  dol- 
lars to  five  dollars  per  head  for  the  cows.'  Was  not  this  simply 
giving  the  damages  ;  simply  aggregating  the  amount  ?  It  was  for 
the  referee  to  find  from  the  evidence  whether  or  not  there  was  an 
unusual  shrinkage,  the  cause  of  it,  and  the  amount  of  damage  in 
case  he  should  find  the  party  liable  for  the  damage.  Now,  was 
not  the  witness  permitted  to  cover  all  these  subjects  by  his  answer? 
I  am  inclined  to  the  opinion  that  the  ruling  of  the  referee  as  regards 
this  question  to  the  witness  was  erroneous ;  but  not  so  palpably 
erroneous  as  to  be  entirely  free  from  doubt,  and  did  the  decision 
of  the  case  turn  on  this  point  solely,  I  should  hesitate  somewhat 
before  consenting  to  a  reversal  of  the  judgment.  Still,  I  am  under 
the  impression  that  it  was  improperly  allowed.  " 

Bundy  &  Sara/mling^  for  the  appellants.    Belknap  <&  Edson, 
for  the  respondent. 

Opinion  by  BOCKES,  J. ;  BOARDMAN,  J.,  concurred.     LEARNED,  P. 
J.,  not  voting. 

Judgment  reversed,  new  trial  ordered ;  reference  discharged,  costs 
to  abide  the  event. 


TOWN  OF  ESSEX  t>.  N.  V.  &  CANADA  R.  K.  CO.      361 
THIKD  DEPABTMKNT,  SEPTEMBBK  TERM,  1876. 


THE  TOWN  OF  ESSEX,  APPELLANT,  v.  THE  NEW  YORK 
AND  CANADA  RAILROAD  COMPANY  AND  OTHEKS, 
RESPONDENTS. 

Irrelevant  matter — striking  out  of —  discretionary — when  improper. 

APPEAL  from  an  order  of  the  Special  Term,  striking  out  portioni 
of  the  complaint  as  irrelevant  and  redundant. 

The  court  at  General  Term  say :  "  Irrelevant  and  redundant  allega- 
tions hurt  no  one.  It  is  not,  therefore,  an  absolute  right  to  have  them 
stricken  out.  The  court  should  exercise  a  discretion.  It  might 
reasonably  strike  out  matter  which  is  plainly  and  on  the  first  glance 
seen  to  be  impertinent.  But  it  should  use  this  power  with  reluct- 
ance and  caution.  There  is  little  benefit  in  motions  of  this  kind, 
and  there  may  be  much  harm.  Immaterial  evidence  can  always 
be  rejected  at  the  trial.  It  is  best  that  the  plaintiff  have  great 
latitude  in  setting  forth  in  his  complaint  whatever,  in  good  faith,  he 
thinks  may  be  important ;  especially  in  cases  like  this,  where  the 
relief  demanded  is  of  an  equitable  character. 

W«  do  not  decide  as  to  the  materiality  of  the  allegations  stricken 
out.  But  for  the  reasons  above  expressed,  we  think  that  the  por- 
tion of  the  order  appealed  from  should  be  reversed,  with  ten  dol- 
lars costs  and  printing." 

Samud  Hand,  for  the  appellant.  Waldo,  Tobey  &  Qrover,  for 
the  respondents. 

Opinion  Per  Curiam. 

Present  —  LEARNED,  P.  J.,  BOOKES  and  BOABDMAN,  JJ. 

Order  reversed,  with  ten  dollars  costs  and  printing. 


DKTKKMLNKD   IN  THB 


FIRST   DEPARTMENT 


AT 


GENERAL     TERM, 
,  1876. 


EDWARD  LANGE,  RESPONDENT,  v.  CHARLES  L.  BENEDICT, 

APPELLANT. 

Unlawful  imprisonment  —  action  for,  against  judge — when  not  maintainable,  although 
sentence  is  unauthorized. 

The  plaintiff  was  convicted  of  a  crime  punishable  by  fine  OR  imprisonment.  The 
United  States  District  Court,  over  which  the  defendant  presided  as  judge, 
imposed  both.  The  plaintiff  paid  the  fine  and  applied  to  be  released,  because 
he  had  suffered  one  of  the  alternative  punishments  provided  for  the  offense. 
The  application  was  denied  and  the  court  directed  the  sentence  pronounced  to 
be  vacated,  and  then  sentenced  the  plaintiff  to  one  year's  imprisonment  under 
his  conviction  (authority  to  so  change  the  punishment  having  been  previously 
held  by  the  Supreme  Court  of  the  United  States  to  exist).  On  return  to  a  writ 
of  habeas  corpus  and  a  writ  of  certiorari  issued  by  the  United  States  Supreme 
Court,  the  plaintiff  was  discharged  from  custody,  the  court  holding  that  he 
could  not  lawfully  be  sentenced  to  imprisonment  after  what  had  transpired  in 
the  case.  The  plaintiff  thereupon  brought  this  action  for  unlawful  imprison- 
ment. Held,  that  it  could  not  be  maintained. 

Where,  in  the  course  of  a  judicial  proceeding,  a  judge  is  required  to  pass  upon 
a  question,  the  law  as  to  which  is  in  such  a  condition  as  to  afford  ostensible 
support  to  each  side  of  the  proposition  presented,  so  that  different  minds  might 
weJ,  and  naturally  would,  be  lead  to  different  conclusions  as  to  the  proper 
course  to  be  pursued  in  disposing  of  the  case,  a  judge  cannot  be  held  person- 
ally liable  for  a  decision  made  by  him  in  good  faith,  and  without  malice,  even 
though  an  appellate  court  should  subsequently  reverse  such  decision,  aud  hold 
that  the  judge  had  no  power  to  render  or  enforce  the  same. 

Especially  is  the  judge  exempt  from  personal  liability,  when  his  action  is  founded 


LANGE  v.  BENEDICT.  363 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

upon  a  decision  of  an  appellate  tribunal  to  which  he  is  bound  to  conform, 
affirming  the  existence  of  the  authority  exercised  by  him  in  passing  the  sen- 
tence in  question. 

APPEAL  from  an  order  overruling  a  demurrer  to  the  complaint, 
on  the  ground  that  it  did  not  state  facts  sufficient  to  constitute  a 
cause  of  action. 

B.  F.  Tracy,  for  the  appellant. 

Wm.  Henry  Amoux,  for  the  respondent. 

DANIELS,  J. : 

The  action  has  been  brought  to  recover  for  the  unlawful  imprison- 
ment of  the  plaintiff  by  the  defendant,  who  is  the  United  States 
district  judge  for  the  eastern  district  of  New  York.  It  appears 
by  the  complaint  and  the  copies  of  the  papers  annexed  to  it,  show- 
ing the  proceedings  had,  that  the  plaintiff  was  indicted,  tried  and 
convicted  at  a  term  of  the  Circuit  Court  of  the  United  States  for 
the  southern  district  of  New  York,  held  by  the  defendant,  of  the 
crime  of  larceny,  committed  by  stealing  mail  bags  of  the  value  of 
less  than  twenty  dollars.  By  the  act  of  Congress  defining  the  offeruse 
and  its  punishment,  that  conviction  rendered  the  plaintiff  liable  to  be 
sentenced  to  pay  a  fine  not  exceeding  $200,  or  to  be  imprisoned 
not  exceeding  one  year.  In,  finally  disposing  of  the  case  the  defend- 
ant imposed  both  these  punishments  upon  him.  The  plaintiff  paid 
the  fine,  and  applied  to  be  released  from  custody  by  means  of  the 
writ  of  habeas  corpus  because  he  had  suffered  one  of  the  alternative 
punishments  provided  for  the  offense.  That  was  denied,  and  the 
court,  by  order  entered,  directed  the  sentence  which  had  been  pro- 
nounced to  be  vacated,  and  then  sentenced  the  plaintiff  to  one  year's 
imprisonment  upon  his  conviction.  He  had  then  been  in  custody 
five  days,  and  afterward  applied  to  the  Circuit  Court  of  the  United 
States,  when  the  circuit  judge,  LEWIS  B.  WOODRUFF,  the  district 
judge  of  the  southern  district,  SAMUEL  BLATOHFOBD,  and  the  defend- 
ant, were  upon  the  bench  presiding,  for  a  writ  of  habeas  corpus,  to 
discharge  him  from  further  imprisonment  because  of  its  illegality. 
The  application  was  heard,  arid  after  being  considered,  was  denied. 
He  then  applied  for  another  writ  of  habeas  corpus  which,  together 


864  LANGE  v.  BENEDICT. 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

with  u  writ  of  certiorari,  was  issued  by  the  Supreme  Court  of  the 
United  States.     And  upon  the  hearing  had  on  the  return  made  to 
both  writs,  the  plaintiff  was  discharged  from    custody,  the  court 
holding  that  he  could  not  lawfully  be  again  sentenced  to  imprison- 
ment after  what  had  transpired  in  the  case.     (Ex  parte  Lanye, 
18   Wall.,   163.)      After  that,  this  action    was    brought   against 
the  defendant  for  false  imprisonment ;  and  a  very  able  argument 
has  been  made  by  the  learned  counsel  for  the  plaintiff  in  favor  of 
maintaining  it.     But  the  report  of  the  case  itself,  as  it  was  consid- 
ered and  decided  by  the  Supreme  Court  of  the  United  States, 
would  seem  to  be  sufficient  to  negative  the  assertion  that  such  an 
action  can  be  maintained  upon  the  facts  in  the  case.     The  sentence 
was  changed  by  the  same  court,  at  the  same  term,  during  which 
the  first  sentence  was  pronounced.     And  a  learned  and  extended 
examination  by  the  court  of  last  resort  was  found  necessary,  for  the 
purpose  of  maintaining  the  position  that  the  change  was  improp- 
erly and  unlawfully  made.     The  opinion   in  which  that  view  was 
sustained  (and  it  was  done  by  one  of  the  ablest  judges  of  the  pres- 
ent time),  proved  unsatisfactory  and  unconvincing  to  two  members 
of  that  learned  court ;  and  its  conclusions  were  cornbatted  by  one  of 
those  two  in  an  opinion  rarely,  if  ever,  excelled  in  the  thoroughness 
of  its  investigations  and  researches,  or  the  vigorous  logic  used  in 
tracing  and  exhibiting  their  results.     Under  these  circumstances,  it 
cannot,  with  the  least  propriety,  be  held  that  the  point  presented  to 
and  decided  by  the  defendant  was  not  a  doubtful  one,  or  that  its  deci- 
sion and  determination  did  not  require  the  exercise  of  judicial  func- 
tions.    The  examination  and  discussion  which  it  received  when  it  was 
finally  decided  most  conclusively  establishes  the  contrary ;  and  that,  of 
itself,  should  be  deemed  to  be  sufficient  to  shield  the  defendant  from 
personal  liability.     The  law  was,  to  say  the  least,  in  such  a  condi- 
tion as  to  afford  ostensible  support  to  each  side  of  the  proposition 
presented,  and  to  render  the  development  of  a  satisfactory  and  con- 
sistent conclusion   intricate  and  difficult.     Different  minds  could 
very  well,  and  would  very  naturally,  be  led  to  different  results  con 
cerning  the  propriety  of  the  course  pursued  in  the  disposition  of  the 
case  by  the  Circuit  Court.     Two  other  judges  of  great  learning  and 
experience  in  that  court  held,  with  the  defendant,  that  the  proceed- 
ings were  not  invalid,  and  the  plausibility  of  their  decision  wa« 


LANGE  v.  BENEDICT.  365 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

finally  corroborated  by  the  opinion  of  Mr.  Justice  CLIFFORD.  If, 
with  that  weight  of  authority  in  support  of  the  action  that  was 
taken,  a  judge  could  be  held  personally  liable  for  its  consequences, 
judicial  protection  would  be  at  once  destroyed,  and  the  utility  of  the 
courts  in  doubtful  cases  practically  subverted.  For  the  result  would 
finally  be  that  all  unauthorized  determinations  arising  out  of  misap- 
prehensions of  the  law,  or  miscalculations  of  the  true  weight  oi 
authority  affecting  the  person,  or  the  property  of  the  defeated  party, 
would  furnish  a  cause  of  action  for  trespass  or  false  imprisonment ; 
and  no  court  could  possibly  be  protected  against  such  liability,  for 
even  those  of  last  resort  not  unfrequently  find  it  necessary  to  re-exam- 
ine, distinguish,  and  finally  overrule  their  own  decisions.  And  it  cer- 
tainly is  no  discredit  to  the  learned  tribunal,  by  whose  mandate  the 
plaintiff  was  set  at  liberty,  to  say  that  it  has  not  always  found  itself  at 
liberty  to  disregard  that  alternative.  The  law  is  the  most  compli- 
cated of  all  practical  sciences,  and  it  cannot  fail  to  become  more  so, 
as  the  intricacies  of  business  and  enterprise  increase  and  advance. 
Differences  of  opinion  upon  legal  subjects  cannot  be  avoided  even 
by  the  most  patient  attention  and  laborious  investigation  ;  and 
when  they  do  arise,  erroneous  conclusions  are  required  to  be  excused 
as  the  natural  consequences  of  human  fallibility.  When  a  party  has 
been  brought  before  a  court  of  justice  in  a  legal  manner,  and  circum- 
stances are  presented  requiring  a  decision  affecting  him  to  be  made,  the 
tribunal  making  it  cannot  be  deprived  of  protection,  because  it  may 
afterwards,  upon  further  and  fuller  investigation,  turn  out  to  have 
been  erroneous.  That  was  the  case  of  the  plaintiff.  He  had  been 
convicted  of  a  crime  punishable  by  fine  or  imprisonment.  The  court 
inadvertently  imposed  both.  When  its  consideration  was  directed 
to  the  misapprehension  under  which  the  sentence  had  been  pro- 
nounced,  an  effort  was  made  to  correct  it  in  such  a  manner  as  to 
comport  with  what  was  considered  to  be  just  in  the  case.  And 
that  correction,  it  was  held,  could  be  and  was  designed  to  be  made. 
The  emergency  which  had  arisen  required  a  decision  concluding  the 
power  of  the  court.  The  judge  could  neither  avoid  making  it  nor 
escape  from  it.  His  duty  required  him  to  act,  and  he  had  the  power  to 
decide,  and  did  so  accordingly,  to  the  best  of  his  judgment.  And  for 
that  he  cannot,  upon  any  sound  principle  of  accountability,  be  held  to 
be  personally  liable.  He  had  for  that  purpose,  jurisdiction  of  the  per- 


366  LANGE  v.  BENEDICT. 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

•on  and  the  subject-matter.  Both  were  before  him,  and  his  decision 
was  necessary.  He  could  not  avoid  making  it  if  he  would.  And  as  it 
turned  out  he  decided  erroneously.  The  rule  by  which  judicial  officers 
have  been  exonerated  from  liability  for  the  consequences  of  their  deci- 
sions, has  gone  much  farther  than  is  required  under  the  circumstances 
for  the  protection  of  the  defendant.  In  Yates  v.  Lansing  (5  Johns., 
282),  the  assertion  was  approvingly  mentioned, "  that  no  authority,  or 
semblance  of  an  authority,  had  been  urged  for  an  action  against  a  judge 
of  record,  for  doing  any  thing  as  judge ;  that  this  was  never  before 
imagined,  and  no  action  would  lie  against  a  judge  for  a  wrongful 
commitment,  any  more  than  for  an  erroneous  judgment."  (Id.,  294.) 
And  that  principle  was  affirmed  afterwards  in  the  same  case  by 
the  Court  of  Errors.  (9  id.,  396.)  And  to  the  same  effect  are  Jen- 
kins v.  Waldron  (11  id.,  114);  Vanderheyden  v.  Young  (id.,  150); 
Wilson  v.  Mayor  of  New  York  (1  Denio,  595)  ;  Weaver  v.  Deven- 
dorf(3id.,  117);  Bradley  v.  Fisher  (13  Wallace,  335).  In  the 
ease  of  The  Rochester  White  Lead  Co.  v.  City  of  Rochester  (3 
Cora.,  464),  it  was  said  that,  "  whenever  dirties  of  a  judicial  nature 
are  imposed  upon  a  public  officer,  the  due  execution  of  which 
depend  upon  his  own  judgment,  he  is  exempt  from  all  responsi- 
bility by  action  for  the  motives  which  influence  him,  and  the  man- 
ner in  which  such  duties  are  performed."  (Id.,  466.)  To  secure 
this  immunity,  it  is  sufficient  that  a  case  requiring  judicial  action  is 
presented  to  the  judge.  (Harnan  v.  Brotherson,  1  Denio,  537  ; 
Landt  v.  Hilts,  19  Barb.,  283.)  But  the  defendant's  right  to  exemp- 
tion from  personal  liability  in  this  case,  rests  upon  still  more  cogent 
circumstances  than  those  already  relied  upon.  For  the  decisions  of 
the  United  States  Supreme  Court,  to  which  he  was  bound  to  sub- 
ordinate his  action,  had  previously  affirmed  the  existence  of 
the  authority  which  he  exercised  in  changing  the  punishment. 
(Cheang-Kee  v.  U.  &,  3  Wallace,  321  ;  Basset  v.  U.  £,  9  id.,  38.) 
In  the  last  case  the  person  proceeded  against  had  pleaded  guilty  to 
an  indictment,  and  had  been  sentenced  to  imprisonment  and  was 
actually  sent  to  prison  in  pursuance  of  the  sentence.  A  few  days 
after  that  he  was  brought  again  into  court  by  means  of  a  writ  of 
•  habeas  corpus,  and  on  the  district  attorney's  motion  the  judgment 
was  set  aside,  and  the  prisoner  had  leave  to  withdraw  his  former 
plea  of  guilty.  This  was  all  done  during  the  same  term,  as  it  wa« 


LANGE  v.  BENEDICT.  367 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

in  the  case  of  the  plaintiff,  and  the  court  unanimously  held  it  to  be 
proper.  It  was  not  held  so  because  the  proceeding  was  favorable 
to  the  defendant,  but  for  the  sole  reason  that  during  the  same  term 
the  court  had  full  power  to  control  and  change  its  judgments.  And 
that  subject  was  very  fully  discussed,  and  the  authorities  cited  upon 
which  the  principle  rested,  by  Mr.  Justice  CLIFFORD  in  his  opinion  in 
Ex  Parte  Lange  (18  Wallace,  191-195).  And  a  decision  of  the  same 
nature  was  made  after  the  execution  of  the  sentence  had  commenced, 
by  reducing  the  term  for  which  transportation  had  been  provided, 
in  the  case  of  Rex  v.  Price  (6  East,  323,  327).  The  Circuit  Court 
had  no  power,  even  if  it  had  the  disposition,  to  gainsay  or  deny  the 
accuracy  of  the  legal  principle  sanctioned  by  the  case  of  Bassett 
v.  U.  S.  (supra).  It  not  only  had  the  power,  but  it  was  bound  to 
conform  its  action  to  the  principle  maintained  by  that  authority. 
That  was  as  obligatory  upon  the  defendant  at  the  time  as  positive 
legislation  would  have  been.  And  he  appears  to  have  acted  under 
its  sanction.  At  that  time  his  action  was  strictly  lawful,  and  it  cannot 
be  denied  that  the  authority  of  that  case  then  afforded  him  complete 
protection  for  the  change  made  in  the  sentence,  and  it  would  prob- 
ably be  conceded  to  continue  to  do  so,  had  it  not  been  since  impaired 
as  authority  by  the  final  decision  made  for  the  plaintiff's  liberation. 
Under  the  doctrine  of  that  case  the  defendant  was  vested  with  clear 
jurisdiction  over  the  subject-matter  brought  before  him,  and  it  at  the 
same  time  indicated  the  manner  in  which  it  should  be  exercised  by 
him.  That  it  was,  as  the  learned  justice  stated  in  his  opinion  in  the 
plaintiff's  favor,  it  had  been  decided  "  in  general  terms,  without  much 
consideration"  (18  Wallace,  167),  could  not  change  its  effect  as 
authority  at  the  time  when  it  was  followed  by  the  Circuit  Court.  The 
defendant  presiding  there  could  not  then,  with  the  least  propriety, 
have  assigned  that  as  a  reason  for  disregarding  it  as  authority. 
The  decision  was  then  in  full  force  as  it  had  been  made.  It  was 
promulgated  by  the  court  in  its  published  reports  as  a  proper 
exposition  of  the  law,  and  it  would  be  exceedingly  unjust  under 
such  circumstances,  to  render  the  defendant's  protection  dependent 
upon  the  views  afterwards  taken  to  correct  it  by  the  court  that  had 
pronounced  it.  That  tribunal  could  correct  it,  as  it  has,  when  it 
was  discovered  to  be  wrong,  but  he  had  no  such  power  over  it. 
It  was  his  duty  to  conform  his  official  action  to  it,  and  for  that  it 


368  LANGE  v.  BENEDICT. 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

cannot  be  that  he  can  be  held  personally  liable,  because  the 
authority  of  the  decision  has  since  been  superseded  by  another. 
His  conduct,  on  the  other  hand,  should  be  so  far  sustained  as  to 
secure  him  immunity,  the  same  as  it  would  have  been  if  a  statute 
had  existed  in  favor  of  it,  which  the  legislature  afterwards 
repealed.  For  future  purposes  the  repeal  obliterates  the  law,  the 
game  as  though  it  had  never  been  enacted.  But  acts  previously 
performed  are  afterwards  maintained  by  force  of  the  law  which  sanc- 
tioned them,  at  the  time  of  their  occurrence.  This  principle  is  too 
familiar  to  require  the  citation  of  authorities  for  its  support,  and  all 
its  reasons  are  applicable  to  the  case  now  before  this  court.  The 
principle  invoked  for  the  support  of  this  action  would  sanction 
suits  against  judges  for  their  official  acts  in  a  large  class  of  cases, 
it  should  receive  the  approval  of  the  courts.  It  would  be  difficult 
to  exclude  from  its  comprehension  any  cases  where  imprisonment 
should  be  pronounced  or  continued,  which  might  afterwards  be 
declared  to  be  unwarranted  by  the  final  view  taken  of  the  law. 
Xo  authority  has  gone  so  far  as  that,  and  it  is  not  probable  that 
any  will  be  hereafter  so  widely  extended.  The  settled  principle 
on  the  contrary  is,  "  that  a  judicial  officer,  in  exercising  the 
authority  vested  in  him,  shall  be  free  to  act  upon  his  own  convic- 
tions, without  apprehension  of  personal  consequences  to  himself. 
Liability  to  answer  to  every  one  who  might  feel  himself  aggrieved 
by  the  action  of  the  judge,  would  be  inconsistent  with  the 
possession  of  this  freedom,  and  would  destroy  that  inde- 
pendence, without  which  no  judiciary  can  be  either  respected 
or  useful."  (Bradley  v.  Fisher,  supra^  347.)  The  defend- 
ant cannot  be  held  liable  for  the  consequences  of  the  impris- 
onment following  the  change  made  in  the  sentence.  He  acted 
judicially  in  making  it.  The  exigency  required  him  to  decide, 
and  that  included  the  power  to  decide  wrong  without  liability  to 
himself,  particularly  as  it  practically  required  the  abrogation  of  an 
existing,  and,  for  the  time,  controlling  authority,  to  render  the 
error  apparent.  It  is  entirely  evident  that  he  was  actuated  solely 
by  the  motive  of  performing  his  duties  for  the  best  interests  of  the 
pnblic,  by  subjecting  the  plaintiff  to  what  was  believed  to  be  no 
more  than  a  proper  measure  of  punishment,  for  the  offense  of  which 
he  had  been  convicted.  That  he  considered  his  acts  to  be  fully 


LANGE  v.  BENEDICT. 


FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 


warranted  by  the  decision  of  the  tribunal  from  which  he  was  bound 
to  receive  the  law,  is  clearly  shown  by  what  the  case  shows  to 
have  transpired,  and  in  that  view  he  was  supported  by  other  emi- 
nent judges.  To  hold  him  liable  for  a  change  afterward  made  in 
it,  would  seem  to  be  hardly  less  than  a  positive  perversion  of  jus- 
tice. That  he  cannot  be  held  liable  for  the  five  days'  imprison- 
ment under  the  sentence,  as  it  was  at  first  pronounced,  follows  from 
the  view  which  was  adopted  in  the  decision  of  the  habeas  corpus. 
For  it  was  then  distinctly  held,  that  "  the  judgment  first  rendered, 
though  erroneous,  was  not  absolutely  void.  It  was  rendered  by  a 
court  which  had  jurisdiction  of  the  party  and  of  the  offense,  on  a 
valid  verdict.  That  error  of  the  court,  in  imposing  the  two  punish- 
ments mentioned  in  the  statute  when  it  had  only  the  alternative  of 
one  of  them,  did  not  make  the  judgment  wholly  void."  (Ex  parte 
Lange,  18  Wall.,  174.)  And  as  the  defendant  had  the  same  juris- 
diction over  the  subject  when  the  plaintiff's  first  sentence  was 
vacated,  and  the  last  one  was  pronounced,  he  is  equally  entitled  to 
the  same  protection  as  to  this  portion  of  the  case.  The  sentence, 
under  the  circumstances,  was  not  void.  It  was  simply  voidable  by 
the  operation  of  the  restriction  subsequently  imposed  upon  the 
principle  established  by  the  case  of  Basset  v.  United  States  (supra), 
and  that  effect  was  first  given  to  it  long  after  the  power  of  the 
defendant's  court  had  been  exhausted.  The  order  should  be 
reversed,  and  an  order  entered  sustaining  the  demurrer,  with  the 
usual  leave  to  the  plaintiff  to  amend,  on  payment  of  costs. 

BBADY,  J.,  concurred.     DAVIS,  P.  J.,  taking  no  part. 

Order  reversed,  and  order  entered   sustaining  demurrer,  with 
usual  leave  to  plaintiff  to  amend  on  payment  of  costs 
HUN—  VOL.  VIIL        41 


870  GALE  v.  MAYOR. 


FIBST  DEPARTMENT,  OCTOBER  TERM,  1876. 


EDWARD  D.  GALE,  RESPONDENT,  v.  THE  MAYOR,  ETC.,  OF 
THE  CITY  OF  NEW  YORK,  APPELLANTS. 

New  York  charier— §  96,  chap.  886  of  1878— Attorney  for  collection  of  personal 
taxes  —  right  of,  to  cost*. 

Under  section  96  of  the  charter  of  the  city  of  New  York  (chap.  885  of  1873), 
providing  that  no  officer  of  the  city  government  shall  receive  any  fees,  per- 
quisites or  commissions,  or  any  per  centage,  but  that  every  such  officer  shall  be 
paid  a  fixed  salary,  the  attorney  for  the  collection  of  personal  taxes  is  riot 
entitled  to  retain  the  costs  recovered  in  actions  brought  by  him,  but  must  pay 
the  same  over  to  the  city. 

The  provision  of  the  said  section,  that  every  officer  who  shall  receive  any  money 
which  should  be  paid  over  to  the  city  shall,  before  he  shall  be  entitled  to  receive 
any  salary,  make  a  return  to  the  comptroller  showing  the  amount  thereof, 
applies  only  to  the  officers  themselves  and  not  to  their  assistants  or  subordinates. 

Accordingly,  in  an  action  brought  by  the  assistant  to  the  attorney  for  the  collec- 
tion of  taxes  to  recover  his  salary,  7ield,  that  the  fact  that  he  had  received  and 
still  held  costs,  which  belonged  to  the  city,  did  not  constitute  a  full  defense  to 
the  action,  but  only  authorized  the  deduction  by  the  city  of  such  amount  from 
what  was  due  to  the  plaintiff. 

APPEAL  from  judgment  in  favor  of  the  plaintiff,  entered  on  the 
Terdict  of  a  jury. 

fronds  Lynde  Stetson,  for  the  appellant. 

C.  A.  Seward  and  Geo.  W.  Wingate,  for  the  respondent 

DANIELS,  J. : 

The  verdict  and  judgment  were  in  part  recovered  in  this  case, 
for  the  amount  claimed  by  the  plaintiff,  as  assistant  clerk  to  the 
attorney  for  the  collection  of  personal  taxes.  His  salary  in  that 
capacity  was  $2,000  per  annum,  $1,000  of  which,  for  the  period 
between  the  1st  of  March  and  the  1st  of  September,  1875,  was 
unpaid.  He  was  then  appointed  to  the  office  of  attorney  for  the 
collection  of  personal  taxes,  the  yearly  salary  of  which,  in  the  com- 
plaint, was  alleged  to  have  been  $7,500,  and  that  was  not  denied 
by  the  answer.  And  the  plaintiff  also  recovered  the  four  monthly 
installments  accruing  between  the  1st  of  September,  1875,  and  the 


GALE  9.  MAYOR.  371 


FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 


1st  of  January,  1876.  While  he  acted  as  assistant  clerk,  and  after 
the  decease  of  the  attorney  himself,  the  plaintiff  received  certain 
costs,  of  which  a  balance  of  $286.50  remained  in  his  hands  at  the 
time  of  the  commencement  of  this  action.  And  it  was  objected  by 
the  defendant  that  he  should  be  precluded  from  recovering  either 
of  the  demands  asserted  by  him,  because  he  had  not  reported  or 
paid  over  that  balance.  In  his  behalf  it  was  insisted  that  the  bal- 
ance was  not  the  property  of  the  defendant,  but  belonged  to  and 
was  held  for  the  widow  of  the  attorney,  to  whom  he  had  been 
appointed  assistant  clerk. 

When  the  office  of  attorney  for  the  collection  of  personal  taxes 
was  created,  it  was  provided  that  the  officer  should  be  paid  a  salary, 
to  be  fixed  by  the  board  of  supervisors,  and  in  addition  to  that 
salary  he  should  also  receive  the  taxable  costs  allowed  against  and 
collected  from  the  adverse  parties.  (Laws  of  1867,  vol.  1,  752,  §  8.) 
What  the  salary  was,  which  was  fixed  by  the  supervisors,  was  not 
shown  in  the  case.  At  the  time  of  its  creation,  the  office  was  made 
a  bureau  in  the  finance  department  of  the  city.  (Laws  1867,  vol.  1. 
750,  §  1.)  But  it  was  afterward  added  to  the  law  department. 
(Laws  1873,  495,  §  36.)  And  it  was  .then  provided,  that  "no  offi- 
cer of  the  city  government,  except  the  city  marshals,  shall  have  or 
receive,  to  his  own  use,  any  fees,  perquisites  or  commissions,  or  any 
per  centage,  but  every  such  officer  shall  be  paid  by  n  fixed  salary 
and  all  fees,  per  centages  and  commission  received  by  any  such 
officer  shall  be  the  property  of  the  city.  (Id.,  509,  §  96,  1126 
§  16.)  It  has  been  urged  that  the  terms  fees,  perquisites,  com- 
missions and  per  centage,  used  in  this  section  of  the  statute, 
do  not  include  the  costs  recovered  in  an  action  against  the 
adverse  party,  and  accordingly  that  the  preceding  provision  made 
by  the  act  of  1867  still  continues  in  force,  giving  such  costs 
to  the  attorney  for  collecting  personal  taxes,  when  they  accrue  in 
actions  prosecuted  by  him.  And  that  construction  might,  perhaps, 
be  properly  given  to  them  if  they  were  unaffected  in  their  meaning 
by  any  thing  else  contained  in  the  act.  But  they  were  not  left  in 
that  condition.  They  were  followed  by  the  declaration  that  every 
euch  officer,  that  is,  every  officer  of  the  city  government,  shall  be 
paid  by  a  fixed  salary.  And  that  could  not  very  well  be  the  case 
if  the  salary  was  liable  to  be  increased  or  diminished  by  the  amount 


872  GALE  v.  MAYOR. 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

of  costs  collected  in  actions  prosecuted  officially  by  the  attorney 
The  provision  made  was  very  general,  that  all  officers  of  the  city 
government,  except  marshals,  should  be  paid  by  fixed  salaries.  Nc 
exception  was  made  or  intended,  as  there  should  have  been,  if  legal 
costs  were  not  designed  to  be  included  within  the  signification  which 
the  terms  fees  and  perquisites  were  intended  to  have.  The  secticu 
must  be  construed  together,  so  that  both  the  results  contemplated 
"by  it  shall  be  secured.  That  requires  that  the  salaries  of  all  the 
officers  of  the  city  government  shall  be  fixed,  and  that  the  fees  and 
emoluments  of  the  office,  resulting  from  the  discharge  of  the  duties 
of  the  officer,  shall  belong  and  be  paid  over  to  the  city. 

The  balance  shown  to  have  been  in  the  plaintiff's  hands  was  not 
received  by  him  as  one  of  the  officers  mentioned  in  this  section  of 
the  statute,  but  as  the  assistant  or  subordinate  of  such  an  officer. 
For  that  reason  the  retention  of  the  money  could  not  be  a  full 
defense  against  the  unpaid  salary,  for  the  plaintiff  was  not  then  one 
of  the  officers  subjected  for  that  act  to  such  a  result  by  this  section  of 
the  act.  It  was  the  officer  himself,  and  not  his  subordinate,  who 
was  required  to  make  out  the  return  and  pay  over  the  money,  and 
precluded  from  a  recovery  of  this  salary  until  that  duty  should  be 
performed  by  him.  The  plaintiff  held  the  balance  which  he  had, 
only  as  so  much  money  received  by  him  for  the  use  of  the  city.  It 
was  the  property  of  the  city,  and  he  was  liable  to  account  for  it,  the 
same  as  any  other  officer  or  agent  would  be  for  corporate  property 
received  by  him,  and  for  that  reason  it  should  have  been  deducted 
from  the  amount  claimed  by  him  at  the  trial. 

The  evidence  showed  that  nothing  had  been  received  by  him  to 
which  the  defendant  could  make  any  legal  claim  after  his  appoint- 
ment to  the  office  itself.  There  was,  therefore,  no  defense  to  that 
portion  of  the  recovery  which  included  his  salary  from  the  1st  of 
September,  1875,  to  the  1st  of  January,  1876.  The  only  error 
appearing  in  the  case  is  that  by  which  the  deduction  of  the  balance 
in  the  plaintiff's  hands,  as  assistant  clerk,  was  not  made  from  the 
amount  of  his  salary.  To  correct  that,  the  judgment  must  be 
reversed  and  a  new  trial  ordered,  with  costs  to  the  defendant,  to 
abide  the  event,  unless,  within  twenty  days  after  notice  of  this 
decision,  the  plaintiff  shall  stipulate  to  deduct  $286.50,  with  interest 
thereon  during  the  time  the  money  has  been  in  his  hands,  front 


COMSTOCK  v.  DROHAN.  373 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

the  amount  of  the  verdict.  In  case  such  deduction  shall  be  made, 
then  the  judgment  as  so  reduced  will  be  affirmed,  without  costs  to 
either  party  on  this  appeal. 

Present  —  DAVIS,  P.  J.,  DANIELS  and  BRADY,  JJ. 

Judgment  reversed,  new  trial  ordered,  costs  to  defendant  to  abide 
fivent,  unless  within  twenty  days  after  notice  of  decision,  plaintifi 
«hall  stipulate  to  deduct  $286.50,  with  interest  during  the  time  the 
money  has  been  in  his  hands,  from  the  amount  of  verdict,  in  which 
case  judgment  as  reduced  affirmed,  without  costs  to  either  party  on 
appeal. 


SYLVESTER  W.   COMSTOOK,   RESPONDENT,   v.  HELEN  E. 
DROHAN,  APPELLANT. 

Assumption  of  mortgage  by  grantee  —  right  of  grantor  —  Judgment-rott  in  foreclosure 
against  grantor — Evidence  against  grantee,  although  not  notified  of  action  —  Costs. 

The  plaintiff  conveyed  a  lot  to  the  defendant  subject  to  a  mortgage,  which  the 
latter  assumed  and  agreed  to  pay.  In  an  action  to  foreclose  the  mortgage,  to 
which  the  plaintiff,  but  not  the  defendant,  was  made  a  party,  a  judgment  for 
deficiency  was  entered  against  and  subsequently  paid  by  the  plaintiff.  In  an 
action  brought  by  him  to  recover  the  amount  so  paid,  held,  that  section  153  of  2 
Revised  Statutes  (Edm.  ed.),  page  199,  providing  that  no  proceedings  shall  be  had 
at  law  for  the  recovery  of  a  debt  secured  by  a  mortgage  after  a  decree  has  been 
entered  in  an  action  to  foreclose  the  same,  unless  authorized  by  the  court,  did 
not  apply  to  an  action  upon  a  covenant  such  as  formed  the  subject  of  the  pres- 
ent action. 

The  object  of  that  provision  was  to  limit  a  party  attempting  to  enforce  the  col- 
lection of  his  debt  by  the  foreclosure  of  a  mortgage  to  that  proceeding,  unless 
good  cause  could  be  shown  why  resort  should  also  be  had  to  an  action  at  law. 

Although  the  defendant  was  not  a  party  to  the  foreclosure  suit,  the  judgment 
recovered  therein  was  competent  evidence  in  this  action  to  show  the  amount 
of  the  mortgage  debt,  the  eale  of  the  property,  and  the  amount  of  the  defi- 
ciency. 

It  was  not  necessary  for  the  plaintiff  to  give  notice  to  the  defendant  of  the  pend- 
ency of  the  foreclosure  suit.  •  Where  one  person  has  become  obligated  to  protect 
another  against  the  consequence  of  his  or  her  default  in  payment,  a  judgment 
regularly  recovered  against  the  party  entitled  to  such  protection  is  prima  facit 
evidence  of  the  facts  established  by  it  in  his  favor,  in  an  action  against  the  per- 
son bound  to  make  the  indemnity. 


874  COMSTOCK  v.  DROHAN. 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

ID  this  action,  fold,  that  the  plaintiff  was  entitled  to  recover  the  amount  of  the 
judgment  paid  by  him,  and  that  the  costs  and  expenses  of  the  foreclosure  suit 
should  be  deducted  from  the  amount  realized  upon  the  sale  of  the  property. 

MOTION  by  defendant  tor  a  new  trial  on  exceptions  ordered  to  be 
beard  in  the  first  instance  at  the  General  Term,  after  a  verdict 
directed  in  favor  of  the  plaintiff. 

Palmer  &  De  Gamp,  for  the  appellant. 
F.  H.  Comstock,  for  the  respondent. 

DANIELS,  J.  : 

The  plaintiff  owned  a  piece  of  land  situated  in  the  city  of  Brook- 
.yn  which  was  incumbered  by  a  mortgage,  he  had  become  liable  to 
pay.  On  the  28th  of  March,  1869,  he  sold  and  conveyed  the  land 
to  the  defendant,  and  inserted  in  the  deed  the  following  clause : 
"Subject  nevertheless,  to  a  certain  mortgage  made  by  Mary  I. 
Treadwell  and  Thomas  H.  Treadwell  to  Albert  Woodruff,  to  secure 
$3,000,  and  interest,  and  recorded  in  said  register's  office  in  liber 
728  of  mortgages,  page  157,  October  10,  1867,  which  said  mort- 
gage the  party  of  the  second  part  hereby  assumes  and  agrees  to 
pay,  the  same  forming  a  part  of  the  consideration  money  herein- 
before expressed,  and  having  been  deducted  therefrom."  The 
effect  of  which,  between  the  plaintiff  and  the  defendant,  who  were 
the  parties  to  the  deed,  was  to  render  the  defendant  primarily,  as 
well  as  personally,  liable  for  the  payment  of  the  mortgage  debt. 
And  as  to  her,  the  plaintiff  continued  liable  for  it  after  that  only 
as  her  surety.  (Burr  v.  Beers,  24  N.  Y.,  178  ;  Rubens  v.  Prin- 
dle,  44  Barb.,  336  ;  Johnson  v.  Zink.  52  id.,  396.)  The  defendant 
failed  to  pay  off  the  mortgage,  and  so  did  her  grantee.  For  that 
default  an  action  was  brought  by  the  assignee  of  the  mortgage  for 
its  foreclosure  and  a  sale  of  the  property  mortgaged.  The  plain 
tiff  was  made  a  defendant  in  the  action,  but  the  present  defendant 
was  not.  Judgment  was  recovered  in  the  usual  form  for  a  fore- 
closure of  the  mortgage  and  a  sale  of  the  premises.  The  amount 
realized  by  the  sale  was  not  sufficient  to  satisfy  the  mortgage  debt, 
and  a  personal  judgment  was  entered  upon  the  confirmation  of  the 
report  of  sale,  against  the  plaintiff,  which  he  afterwards  paid ;  and 


COMSTOCK  v.  DROHAN. 


FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 


to  recover  the  amount  paid,  he  then  brought  this  action  against 
the  defendant.  The  issue  joined  in  the  action  was  tried  at  the 
Circuit,  and  a  verdict  directed  in  his  favor  against  her  for  that 
amount. 

After  the  opening  of  the  case  on  the  part  of  the  plaintiff,  the 
defendant's  counsel  moved  for  a  dismissal  of  the  complaint,  "  on  the 
ground  that  the  plaintiff  does  not  show  that  he  is  in  a  position  to 
sue  for  and  recover  any  deficiency  upon  the  foreclosure  suit,  or 
that  he  has  any  right  to  the  money  upon  this  mortgage,  without 
placing  the  defendant  in  a  position  whereby  she  could  have  the 
benefit  of  the  mortgage."  And  the  same  application  was  renewed 
and  denied  at  the  close  of  the  plaintiff's  proof.  This  statement 
was  in  no  way  suggestive  even,  of  the  objection  now  chiefly  taken 
to  the  decision  of  the  court.  It  was  not  claimed  by  it  that  the 
action  was  prosecuted  in  violation  of  the  provision  of  the  statute, 
declaring  that  no  proceedings  whatever  shall  be  had  at  law  for 
recovery  of  the  debt  secured  by  the  mortgage,  unless  authorized 
by  the  court,  after  a  decree  had  been  rendered  in  the  foreclosure 
case.  (2  R.  S.,  Edmonds'  ed.,  199,  §  153.)  But  if  it  had  been 
taken  it  could  not  possibly  aid  the  defendant  in  resisting  a  recovery 
in  the  present  action.  For  the  statute  has  no  application  to  an 
action  upon  a  covenant  of  the  nature  of  that  contained  in  the  deed 
to  the  defendant  by  the  grantor,  after  the  payment  of  the  deficiency 
by  him.  Its  object  was  to  restrain  proceedings  at  law  for  the  col- 
lection of  the  mortgage  debt  by  the  party  endeavoring  to  enforce  it, 
by  an  action  for  its  foreclosure,  in  which  all  the  relief  he  might  be 
entitled  to  could  be  secured  without  subjecting  the  debtor  to  another 
action.  (Suydam  v.  Bartle^  9  Paige,  294.)  And  not  to  prevent 
a  party  who  had  been  compelled  to  pay  the  debt,  either  wholly  or 
partially,  from  maintaining  an  action  for  his  reimbursement  against 
another  who  had  become  liable  upon  an  independent  agreement  to 
indemnify  him.  That  was  the  nature  of  the  obligation  entered 
into  by  the  defendant  with  the  plaintiff.  She  agreed  to  pay  off 
the  mortgage  debt,  and  by  necessary  implication  to  indemnify  him 
against  the  legal  consequences  of  her  failure  to  perform  the  agree- 
ment. When  she  failed  to  pay,  and  it  was  paid  by  him  on  the 
judgment  recovered  against  him  for  the  deficiency,  it  was  so  much 
money  paid  for  her  use,  and  which  he  was  entitled  to  recover 


376  COMSTOCK  v   DROHAN. 

FIUST  DEPARTMENT,  OCTOBER  TERM,  1876. 

against  her.  The  statute  never  was  designed  to  reach  a  case  of 
that  kind,  but  to  limit  the  party  prosecuting  an  action  to  foreclose 
the  mortgage  to  that  proceeding,  unless  good  cause  could  be  shown 
for  relief  from  the  statutory  restraint. 

The  proceedings  and  judgment  in  the  £preclosure  case  were 
received  in  evidence  to  show  the  amount  of  the  mortgage  debt, 
the  sale  of  the  property  and  the  amount  of  the  deficiency.  That 
was  objected  to  and  is  now  insisted  upon  as  erroneous,  because  the 
defendant  was  not  a  party  to  that  action,  and  had  no  notice  of  its 
pendency.  Evidence  was  given  tending  to  show  an  informal 
notice  of  the  pendency  of  the  action  to  the  defendant's  husband  as 
her  agent.  But  it  was  denied  by  him,  and  if  notice  was  necessary, 
the  court  could  not,  on  that  state  of  the  proof,  take  the  decision  of 
the  point  from  the  jury  and  decide  the  controverted  fact  itself. 
The  ruling  of  the  court  must  have  proceeded  upon  the  theory,  that 
notice  to  the  defendant  of  the  pendency  of  the  foreclosure  suit  was 
not  necessary  in  order  to  entitle  the  plaintiff  to  read  the  judg- 
ment roll  in  evidence.  And  as  she  was  bound  to  indemnify  him 
against  the  legal  results  to  him  from  her  default  in  payment,  that 
ruling  was  correct.  For  where  one  person  has  become  obligated 
to  protect  another  against  the  consequences  of  his  or  her  default 
in  payment,  a  judgment  regularly  recovered  against  the  party 
entitled  to  such  protection  is  prima  facie  evidence  of  the  facts 
established  by  it  in  his  favor  in  an  action  against  the  person  bound 
to  make  the  indemnity.  The  point  was  examined,  and  this  result 
maintained,  in  the  case  of  Bridgeport  Fire  Ins.  Co.  v.  Wilson  (34 
N.  Y.,  275,  279-281),  and  it  was  approved  and  applied  in  Konitzky 
v.  Meyer  (49  id.,  571,  573,  574,  576);  O'Brien  v.  McCann  (58  id., 
373,  376),  and  to  the  same  general  effect  are  the  cases  of  Train  v. 
Gold  (5  Pick.,  380) ;  Leather  v.  Poultney  (4  Binney,  352) ;  Car- 
mack  v.  Com  (5  id.,  184);  Munford  v.  Overseers  (2  Eand.,  313, 
318,  319) ;  Jacobs  v.  Hell  (2  Leigh,  393,  marginal  paging) ;  State  v. 
ColericTc  (3  Hammond,  487)  ;  Clark  v.  Carrington  (7  Cranch,  308). 
The  objection  taken  to  the  record  and  proceedings  in  the  foreclos- 
ure suit  was  properly  overruled,  and  they  sufficiently  established 
the  defendant's  default,  and  the  amount  he  was  charged  with  and 
afterwards  paid  by  reason  of  it.  And  no  evidence  to  the  contrary 
was  even  proposed  to  be  given  on  the  part  of  the  defendant. 


COMSTOCK  v.  DROHAN.  37 , 

FIKST  DEPARTMENT,  OCTOBER  TERM,  1876. 

It  was  objected  on  her  part,  that  the  costs  and  expenses 
of  the  action  to  foreclose  the  mortgage  could  not  be  allowed 
against  her  to  reduce  the  proceeds  of  the  sale  of  the  property 
because  she  was  not  made  a  party.  And  reliance  has  been 
placed  upon  the  cases  of  Peabody  v.  Roberts  (47  Barb.,  92), 
and  Oage  v.  Brewster  (31  N.  T.,  218),  as  supporting  that 
position.  But  as  they  considered  only  the  rights  and  liabilities 
of  a  party  in  an  action  to  redeem,  not  included  in  the  action  to 
foreclose,  they  do  not  sustain  that  point.  An  incumbrancer,  not  a 
party  to  an  action  for  the  foreclosure  of  a  mortgage,  is  not  fore- 
closed or  affected  in  any  respect  by  the  proceeding.  For  that 
reason  his  obligations,  in  the  way  of  payment,  cannot  be  increased 
by  imposing  the  cost  and  expense  of  it  upon  him.  But  in  this  case 
there  was  no  other  way  by  which  the  property  could  be  applied  to 
the  payment  of  the  debt,  and  the  partial  extinguishment  of  her 
obligation.  It  was  a  necessary  result  of  her  default  in  not  paying 
as  she  had  agreed  to  do  with  the  plaintiff.  Her  agreement  was, 
in  effect,  one  which  bound  her  to  indemnify  him  against  the  con- 
sequences of  her  default.  And  these  costs  and  expenses,  which 
were  deducted  out  of  the  proceeds  of  the  sale,  were  made  by  reason 
of  it.  The  plaintiff  was  obliged  to  allow  them  because  of  her 
default  in  payment,  and  he  cannot  be  protected  and  indemnified  as 
he  was  entitled  to  be  under  her  agreement  with  him,  by  rendering 
him  responsible  for  them.  (N.  Y.  State  Marine  Ins.  Co.  v.  Pro- 
tection Ins.  Co.,  1  Story,  458 ;  Smith  v.  Compton,  3  Bar.  &  Adol.; 
407 ;  23  Eng.  0.  L.,  106.)  The  motion  for  a  new  trial  should  be 
denied,  and  judgment  on  the  verdict  directed  for  the  plaintiff 

DAVIS,  P.  J.,  and  BBADT,  J.,  concurred. 

Motion  denied,  and  judgment  on  verdict  directed  for  plaintiff. 
HUN— VOL.  VIH        48 


878  SIMON  v.  HUOT. 


FIRST  DEPARTMENT,  OCTOBER  TEKM,  1876. 


EDWARD   SIMON  AND  OTHERS,   PLAINTIFFS,   v.  CLEOPHA8 

HUOT    AND    OTHERS,    DfiFKNOANTS. 
Promissory  note  —  Garnishment  process — effect  of  on  rights  of  bonafide  purchaser: 

The  laws  of  Florida  provide  that  in  any  action  commenced  therein  a  notice  01 
garnishment  may  be  issued  to  any  person  indebted  to  the  defendant  in  said  action, 
requiring  him  to  state  the  amount  of  his  indebtedness  at  the  time  of  the  issuing 
of  the  summons,  and  authorize  a  judgment  to  be  entered  in  favor  of  the  plaintiff 
for  the  amount  of  such  indebtedness,  if  it  be  admitted,  and  an  execution  to  be 
issued  thereon.  Held,  that  these  provisions  included  all  debts  without  regard 
to  the  form  in  which  they  were  contracted,  and  that  they  were  applicable  to 
negotiable  paper. 

Accordingly  where,  in  an  action  upon  a  promissory  note,  made  and  payable  in 
that  State,  brought  by  one  who  had  purchased  the  same  in  this  StatP.  without 
notice  and  for  full  value,  it  appeared  that  while  the  payee  still  owned  the  note 
an  action  had  been  commenced  against  him,  in  which,  after  due  service  of 
notice  of  garnishment  on  the  makers,  judgment  had  been  entered  against  them 
for  the  amount  thereof,  and  their  property  had  been  seized  under  an  exec  ution 
issued  thereon,  held,  that  the  court  erred  in  directing  a  verdict  for  the  plaintiff. 

MOTION  by  defendants  for  a  new  trial,  on  exceptions  ordered  to 
be  heard  in  the  first  instance  at  the  General  Term. 

B.  F.   Watson,  for  the  plaintiffs. 

John  Swing  Wrisley,  for  the  defendants. 

DANIELS,  J. : 

The  plaintiffs  as  the  indorsees,  for  value  without  notice,  of  a  pro- 
missory note,  were  allowed  to  recover  the  amount  due  upon  it  at 
the  trial,  by  the  direction  of  the  court,  and  the  exceptions  taken  to 
that  direction,  and  to  the  refusal  to  direct  a  verdict  for  the  defend- 
ants, were  ordered  to  be  first  heard  at  the  General  Term,  and 
judgment  in  the  mean  time  was  suspended.  The  note  was  made 
by  the  defendants  who  were  then  residents  and  citizens  of  the 
State  of  Florida,  on  the  8th  day  of  September,  1873,  and  by  itt 
terms  they  promised  to  pay  to  the  order  of  Louis  Sylvester 
$1,655.97,  at  their  office  for  value  received,  in  twelve  months  aftei 


SIMON  v.  HUOT.  379 


FIKST  DKPAKTMEKT,  OCTOBER  TERM,  1876. 


date.  The  plaintiffs  received  the  note  from  the  payee  properly 
indorsed  by  him,  on  the  9th  of  June,  1874,  for  the  purchase-price 
of  goods  sold  and  delivered  by  them  to  him,  and  amounting  to  the 
sum  unpaid  by  its  terms. 

Both  the  complaint  and  the  answer  of  the  defendants  averred  that 
the  note  was  made  by  them,  and  delivered  to  Sylvester,  the  payee,  at 
Fernandina,  in  Florida,  and  it  was  payable  at  the  defendant's  office  in 
that  place.  After  the  making  and  delivery  of  the  note  and  on  the  3d 
of  March,  1874,  an  action  was  commenced  by  Charles  R.  Ely  and 
others  against  Sylvester,  the  payee,  in  the  Circuit  Court  of  the  fourth 
judicial  circuit  of  that  State,  for  the  recovery  of  a  debt  claimed  to 
be  owing  from  him  'to  them.  The  court  had  jurisdiction  over  the 
action  and  the  summons  in  it  was  served  personally  on  the  defend- 
ant on  the  next  day.  At  the  time  of  the  commencement  of  the 
suit,  upon  a  proper  affidavit  and  bond,  an  application  was  made  for 
an  attachment  against  the  debtor,  arid  a  writ  of  garnishment  against 
Huot,  Kelly  &  Co.,  the  present  defendants,  as  persons  who  had  prop- 
erty, money  and  effects  in  their  ..hands  belonging  to  Sylvester,  the 
debtor.  That  writ,  as  well  as  the  attachment,  were  issued,  and  the 
writ  was  served  on  these  defendants  on  the  3d  of  March,  1874,  the 
day  on  which  it  issued.  They  appeared,  as  it  required  them  to  d<>, 
and  filed  their  answer  in  which,  among  other  things,  they  set  forth 
the  making  and  delivery  of  the  note  in  suit,  and  stated  that  it  was  then 
still  held  by  Sylvester,  which  appears  to  have  been  the  fact.  The 
action  proceeded  to  judgment  against  Sylvester  on  the  16th  day  of 
May,  1874,  and  against  the  makers  of  the  note  on  the  29th  of 
October,  1874.  By  the  judgment  against  them  they  were  adjudged 
liable  to  pay  the  plaintiffs  in  that  action  the  sum  of  $1,762.06, 
besides  five  dollars  and  fifty  cents  costs,  and  that  payment  was 
required  from  them,  oy  reason  of  their  liability  to  Sylvester,  upon 
the  note  received  by  the  plaintiffs,  for  the  other  note  made  by  them 
was  shown  to  have  passed  out  of  his  hands  before  the  proceedings 
against  them  were  instituted.  Upon  this  judgment  execution  was 
issued  on  the  3d  of  December,  1874,  and  levied  upon  the  defend- 
ants' goods.  But  at  their  instance  the  goods  were  released,  and  a 
levy  made  upon  real  estate  owned  by  them  in  lieu  of  the  goods,  and 
the  proceedings  remained  in  that  condition  when  this  action  was 
tried,  it  having  been  commenced  in  October,  1874.  The  court 


380  SIMON  v.  HUOT. 


FIRST  DEPARTMENT,  OCTOBER  TERM.  1876. 


held  that  these  proceedings,  although  taken  in  conformity  to  the 
stat  ute  of  Florida,  constituted  no  defense  to  the  plaintiffs'  action  upon 
the  note ;  and  whether  it  was  right  in  that  position  is  the  important 
point  now  required  to  be  considered  and  decided  by  this  court. 

As  the  note  was  made  and  delivered,  and  was  also  payable  in 
Florida,  its  effect  as  a  contract  depended,  as  far  as  they  had  been 
enacted  upon  the  subject,  on  the  laws  of  that  State.  And  by  those 
laws,  as  they  were  proved  upon  the  trial  and  appear  in  the  case, 
any  person  indebted  to  a  defendant  proceeded  against  was  rendered 
liable  to  be  summoned  to  appear  and  state  on  oath,  in  writing, 
whether  he,  she  or  they  were  indebted  to  the  defendant,  and  in 
what  sum,  at  the  time  of  the  service  of  the  summons.  And  when 
the  garnishee  confessed  the  indebtedness,  as  that  was  done  by  the 
answer  filed  by  the  defendants,  then  it  was  provided  that  if  the 
plaintiff  should  be  "  satisfied  with  the  statement,  admission,  con- 
fession, or  discovery,  the  court  shall  award  judgment  against  said 
garnishee  for  the  amount  so  confessed,  and  execution  may  issue  for 
the'  same  against  said  garnishee."  These  provisions  included  all 
debts,  without  reference  to  the  form  in  which  they  were  contracted, 
and  for  that  reason  were  applicable  to  the  note  in  suit.  It  was 
sufficient  for  the  application  of  the  statute,  that  the  party  proceeded 
against  was  in  fact  indebted  to  the  defendant  in  the  action,  at  the 
time  when  the  proceedings  were  taken,  and  how  the  debt  was 
created  or  by  what  instrument  it  may  have  been  evidenced,  was, 
therefore,  not  an  important  consideration.  The  liability  depended 
on  the  existence  of  a  debt,  not  on  the  form  of  the  obligation  taken 
for  it.  And  for  that  reason  to  that  extent  it  necessarily  qualified  the 
negotiability  of  commercial  paper  made  and  delivered  within  the 
State  of  Florida,  and  rendered  the  debt  for  which  it  should  be  given 
liable  to  be  applied  in  payment  of  debts  against  the  holder,  as  long 
as  the  paper  continued  in  his  hands  as  his  property.  It  was  not 
relieved  from  that  liability  by  the  circumstance  that  it  was  no*"  due, 
and  might  afterwards  be  negotiated  by  the  holder  having  yoeses- 
eion  of  it,  to  an  innocent  purchaser.  That  was  a  contingency  for 
which  no  provision  was  made  by  the  statute.  The  righv  of  the 
creditor  to  have  it  appropriated  to  his  pay  meet  was  made  complete, 
by  reason  of  the  circumstance  that  the  debt  was  owing  to  the 
debtor ;  upon  that  the  statute  intervened  for  the  protection  of  the 


SIMON  v.  HUOT.  381 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

creditor,  and  rendered  his  right  to  sequestrate  the  debt  absolute. 
It  looked  no  further,  and  did  not  undertake  to  guard  against  th« 
ulterior  consequences  which  might  have  been  expected  to  arise 
from  a  subsequent  unauthorized  negotiation  of  the  paper.  Legis- 
lation of  this  general  nature  affecting  the  negotiable  qualities  of 
commercial  paper  is  not  uncommon,  and  to  some  extent  it  has  been 
enacted  in  this  State,  rendering  such  paper  void  in  the  hands  of 
even  innocent  holders,  when  made  in  contravention  of  its  pro- 
visions. That  is  the  case  as  to  betting,  gaming,  usurious  and  other 
transactions  forbidden  by  law. 

The  holder  of  the  note  though  shown  to  reside  beyond  the  limits 
of  the  State  was  actually  within  it,  and  so  was  the  note,  when  the 
action  against  him  was  commenced,  and  the  process  issued  for  that 
purpose  was  personally  served  upon  him.  By  that  service,  and  the 
service  of  the  summons  upon  the  present  defendants,  complete  jur- 
isdiction was  acquired  over  the  subject-matter  and  the  parties  to  the 
action,  and  the  note  in  suit  was  subjected  to  the  power  and  authority 
created  over  it  by  the  statute.  And  whoever  purchased  it  afterwards 
from  the  defendant  Sylvester  took  it  as  it  was  affected  by  the  pro- 
ceedings taken,  and  subordinated  to  that  authority,  even  though 
that  rule  would  not  ordinarily  be  applied  to  the  holder  of  negotia- 
ble paper.  (Leitch  v.  Wells,  48  Barb.,  641,  649 ;  Hopkins  v. 
McLaren,  4  Cowen,  667-678,  679 ;  Story  on  the  Conflict  of  Laws 
[5th  ed.],  §§  548,  551.) 

A  similar  point,  under  circumstances  less  favorable  to  the 
defendants,  arose  in  the  case  of  Hull  v.  Blake  (13  Mass.,  153), 
where  like  proceedings  which  had  been  prosecuted  in  the  State  of 
Georgia  were  held  to  be  a  bar  to  an  action  brought  upon  notes 
by  a  bona  fide  holder  for  value,  who  received  them  before  they 
were  due.  In  the  course  of  the  decision  of  that  case,  after  holding 
that  the  notes  derived  their  validity  as  contracts  from  the  laws  of  the 
State  of  Georgia,  it  was  further  held  by  PARKER,  C.  J.,  and  concurred 
in  by  the  court,  "  that  if  by  the  laws  of  the  State  of  Georgia,  in  force 
when  these  notes  were  given,  they  might  be  discharged  by  a  pay- 
ment to  the  original  promisee  after  they  were  indorsed,  and  such 
payment  had  been  actually  made,  proof  of  these  facts  would  secure 
the  defendant  from  a  second  payment,  although  it  should  be  demanded 
by  an  indorsee  who  had  t>aid  a  valuable  consideration,  and  who  must 


882  SIMON  v.  HUOT. 


Finsx  DEPARTMENT,  OCTOBER  TKKM,  1876. 


in  that  case  be  considered  as  relying  upon  his  indorser  if  he  should 
fail  in  recovering  the  amount  from  the  promissor.  A  law  providing 
that  any  creditor  of  the  promisee  may  compel  the  promissor  to  pay 
the  debt  to  him,  notwithstanding  the  evidence  of  its  negotiable 
quality  and  that  it  may  have  been  actually  negotiated,  would  have 
the  same  effect.  Such  a  provision  would  be  extraordinary  and  con- 
trary to  the  effect  generally  given  to  negotiable  securities  in  any 
mercantile  country ;  but,  if  the  law  be  so,  it  must  have  operation 
on  the  contract  wherever  it  may  be  sued,  because  the  laws  of  the 
place  where  the  contract  is  made  necessarily  make  a  part  of  the 
contract,  and  are  understood  as  its  governing  principle."  (Id.,  156.) 
The  same  point  was  again  examined  and  considered  by  that  court 
(Meriam  v.  Rundlett,  13  Pick.,  511),  and  the  preceding  decision 
was  approved.  But  as  other  property  had  also  been  rendered  liable 
to  the  payment  of  the  judgment,  and  that  of  the  debtor  himself 
was  required  to  be  first  exhausted  and  applied  in  payment  of  the 
judgment,  the  court  held  the  proceedings  which  had  been  taken  in 
the  State  of  Missouri  to  be  a  defense  only  by  way  of  abatement  or 
suspension  of  the  action,  until  it  could  be  seen  whether  the  makers 
of  the  note  would  be  obliged  to  pay  the  amount  of  it  there.  The 
game  general  principle  as  that  which  was  held  in  Hull  v.  Blake 
was  maintained  in  Holmes  v.  Remsen  (20  Johns.,  229),  but  there 
the  debt  was  not  negotiable,  and  actual  payment  had  been  enforced. 
Also,  in  Emhree  v.  Hanna  (5  id.,  101),  where  a  debt  of  the  same 
nature  had  been  attached  in  another  State.  A  like  effect  was  given 
to  a  similar  principle  in  Trubee  v.  Alden  (13  S.  C.  N.  Y.  [6  Hun], 
75).  See,  also,  2  Parsons  on  Bills  and  Notes,  386-390,  where  the 
authorities  affecting  the  exoneration  of  the  makers  under  circum- 
stances like  those  presented  in  this  case  have  been  collected  and 
discussed,  and  the  conclusion  of  Hull  v.  Blake  sustained.  Also, 
volume  1,  260,  where  it  is  stated  as  the  law  that,  "  if  the  defendant  is 
compelled  by  due  process  of  law  to  pay  the  note  to  another  party, 
the  plaintiff  who  holds  the  note  cannot  recover  it  of  him.  Thus, 
if  the  paper  be  not  negotiable,  and  trustee  process  is  served  upon 
the  promissor,  or  if  »the  paper  be  negotiable,  and  such  process  ia 
served  in  States  where  it  may  be  served  in  such  cases,  the  promissor 
mast  pay  the  plaintiff  in  the  trustee  process,  and  this  would  be  a 
defense  if  sued  by  the  holder."  (2  Parsons  on  Cont.  [6th  ed-X 


SIMON  v.  HUOT.  383 


FIRST  DEPARTMENT,  OCTOBEB  TERM,  1876. 


606-608.)  That  is  the  necessary  effect  of  the  judgment  in  the  State 
in  which  it  may  have  been  recovered,  and  under  the  Constitution 
of  the  United  States,  it  is  entitled  to  the  same  faith  and  credit  from 
the  courts  in  the  other  States.  ( Wheeler  v.  fiaymond,  8  Cow.,  311.) 

By  the  judgment  of  the  court  recovered  in  Florida,  the  defend- 
ants were  unqualifiedly  required  to  pay  the  amount  of  the  note  to 
the  plaintiffs  in  that  action.  No  such  contingent  liability  was  cre- 
ated as  appeared  in  Meriam  v.  Rundlett  (supra) ;  and  besides  that, 
execution  had  been  issued  and  properly  levied  upon  under  it,  which 
was  probably  sufficient  to  satisfy  the  judgment.  The  principal 
defendant  was  not  a  resident  of  the  State,  and  did  not  appear  to 
have  any  other  property  than  this  debt  within  it  and  subject  to  the 
process  of  its  courts ;  and  for  those  reasons,  under  the  authority,  of 
Hull  v.  Blake  (supra),  a  complete  defense  was  shown  to  the  action. 
But  if  the  contingency  that  Sylvester  might  still  pay  the  judgment 
is  entitled  to  weight  in  the  consideration  of  the  case,  the  proceed- 
ings taken  required  an  abatement  or  suspension  of  the  action  until 
that  should  be  determined,  and  that  was  sufficient  to  render  the 
direction  of  a  verdict  against  the  defendants  as  the  makers  of  the 
note  erroneous. 

It  has  been  urged  that  those  proceedings  should  be  denied  effect, 
as  collusive,  because  of  the  change  made  in  the  property  levied  upon, 
and  the  return  of  the  note  by  defendants  to  Sylvester  two  days  after 
the  service  of  the  writ  of  garnishment.  But  as  the  change  in  the 
levy  in  no  way  released  the  defendants  or  their  property  from  the 
payment  of  the  judgment  against  them,  and  it  did  not  appear  that 
they  could  have  lawfully  withheld  the  note,  it  having  been  pledged 
to  them  for  a  special  purpose  only,  it  cannot,  with  any  degree  of 
propriety,  be  now  held  that  the  proceedings  were  collusive  for  those 
reasons.  That  may  be  made  to  appear  upon  another  trial  of  the 
action  by  evidence  which  will  justify  the  jury  in  adopting  that  view 
of  the  proceedings.  But  as  they  now  appear  to  stand,  they  are  not 
sufficient  to  prevent  a  recovery  upon  the  note  by  the  plaintiffs. 

There  should  be  a  new  trial  of  the  action,  with  costs  to  abide  the 
•vent. 

DAVIS,  P.  J.,  and  BBADT,  J.,  concurred. 

Motion  for  new  trial  granted,  costs  to  abide  event. 


884  RUGEN  v.  COLLINS. 

FIBST  DEPARTMENT,  OOTOBEB  TERM,  1876. 


JOSEPHINE  RUGEN  AND  HERMANN  RUGEN,  RESPOND- 
ENTS, v.  CATHARINE  E.  COLLINS  AND  MARIETTA 
COLLINS,  AN  INFANT,  IMPLEADED  WITH  OTHERS,  APPELLANTS. 

Costs  —  Conflicting  claims  to  real  property  —  Code,  §  449. 

Where,  in  an  action  brought  in  pursuance  of  section  449  of  the  Code,  to  deter- 
mine conflicting  claims  to  real  property,  the  plaintiffs'  complaint  is  dismissed, 
the  defendant  is  entitled  to  costs,  as  a  matter  of  right,  and  the  court  cannot 
prevent  his  recovering  the  same. 

APPEAL  from  so  much  of  a  judgment  dismissing  the  plaintiffs' 
complaint  as  denied  costs  to  the  defendants,  and  from  an  order 
denying  a  motion  made  by  them  for  the  allowance  of  costs. 

J.  H.  Whitdegge,  for  the  appellants. 
Samuel  Wood,  for  the  respondents. 

DANIELS,  J. : 

This  action  was  brought  for  the  determination  of  conflicting 
claims  to  a  parcel  of  real  estate.  It  was  tried,  by  consent,  before 
the  court,  without  a  jury,  and  the  complaint  dismissed,  without 
costs,  because  it  failed  to  state  facts  sufficient  to  constitute  a  cause 
of  action.  And  the  defendants  have  appealed  from  the  part  of  the 
judgment  depriving  them  of  their  costs,  claiming  that  their  right 
to  recover  them  was,  in  no  respect,  subject  to  the  discretion  of  the 
court. 

In  that  view  they  also  presented  a  bill  of  costs  to  the  clerk  for 
adjustment,  which  was  rejected  by  him.  And  from  his  decision 
they  appealed,  by  way  of  motion,  to  the  Special  Term.  The  same 
disposition  was  there  made  of  their  bill,  and  from  the  order  then 
made  they  have  appealed  to  this  court.  These  decisions  of  the 
clerk  and  of  the  motion  by  the  Special  Term,  were  clearly  correct 
in  point  of  practice,  even  if  the  portion  of  the  judgment  appealed 
from  shall  prove  incapable  of  being  sustained.  For,  as  long  as  that 
continued  in  force,  and  unreversed,  it  had  the  effect  of  depriving 
the  defendants  of  their  costs,  and,  even  if  it  had  been  erroneously 
directed,  it  could  not  be  corrected  in  a  collateral  proceeding  like 


RUGEN  v.  COLLINS.  385 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1878. 

that  resorted  to  by  the  defendants,  for  the  allowance  of  their  costs. 
If  any  error  had  intervened,  by  which  the  defendants  were  deprived 
of  their  costs,  it  could  only  be  corrected  by  a  vacation  of  that 
portion  of  the  judgment,  or  in  a  direct  proceeding,  by  way  of  appeal, 
for  the  purpose  of  reviewing  it.  Neither  the  clerk  nor  the  Special 
Term  had  any  power  over  the  decision,  and,  consequently,  couM 
not  disregard  it. 

But  in  the  appeal  from  the  judgment  the  question  is  directly 
presented,  whether  costs  were  properly  denied.  Before  1849  the 
subject-matter  of  the  action  required  only  a  special  proceeding,  for 
its  prosecution  and  determination.  But  in  that  year  it  was  pro- 
vided that  the  rights  of  the  parties  to  such  a  controversy  might 
be  enforced  by  an  action.  (Code,  §  449.)  That  made  no  other 
change  than  to  constitute  it  the  proper  subject  of  an  action.  It 
left  the  rights  of  the  parties  in  all  other  respects  within  the  con- 
trol of  the  preceding  provisions  of  the  law.  That  resulted  from 
the  language  used  in  the  enactment  of  the  section,  as  well  as 
from  the  circumstance  that  none  of  those  provisions  were  changed 
or  repealed  by  it.  The  simple  power  alone  was  created  of  com- 
pelling the  determination  of  the  conflicting  claims  by  action. 
And  when  it  should  be  done,  it  was  required  to  be  "  pursuant  to 
the  provisions  of  the  Revised  Statutes."  And  by  an  amendment 
to  those  statutes  made  by  chapter  511  of  the  Laws  of  1855,  it  was 
declared  that  the  issues  formed  should  be  tried  in  the  same  manner 
as  issues  in  other  personal  actions  and  the  successful  party  entitled 
to  judgment  for  such  relief  as  he  could  recover,  with  costs  as  iu 
other  personal  actions  under  the  Code.  (Laws  of  1855,  chap.  511, 
§  4.)  This  was  in  terms  an  amendment  of  the  provisions  con- 
tained in  the  Revised  Statutes,  requiring  the  proceeding  to  be 
commenced  by  a  mere  notice.  But  from  the  language  used  by 
section  449  of  the  Code  it  was  made  equally  applicable  to  an  action 
instituted  for  the  same  purpose,  for  it  provided  that  the  action  should 
be  prosecuted  pursuant  to  the  provisions  of  the  Revised  Statutes. 
And  it  could  not  consistently  have  been  designed  that  costs  should 
be  awarded  when  the  proceedings  were  commenced  by  a  notice 
and  denied  when  the  same  right  was  enforced  by  action.  The 
right  to  costs  was  provided  by  the  Revised  Statutes  as  amended 
by  the  act  of  1855,  and  it  was  to  be  alone  pursuant  to  such  pro- 
HUN— VOL.  VIII.  49 


886  RUGEN  t>.  COLLINS. 

PIBST  DEPARTMENT,  OCTOBER  TERM,  1876. 

visions  that  the  action  could  be  prosecuted  under  the  Code.  It 
•was  simply  irt  the  form  of  the  proceeding  that  a  change  was  made, 
not  in  the  rights  ur  obligations  of  the  parties  to  it.  They  were 
intended  to  be  the  same  in  the  action  as  they  would  be  if  a 
notice  instead  of  a  summons  were  made  use  of  for  the  purpose 
of  commencing  them. 

The  right  to  costs  was  also  secured  by  the  provisions  of  the 
Code  applicable  to  all  civil  actions,  which  since  1849  included  an 
action  to  determine  conflicting  claims  to  real  estate.  For  when 
this  action  was  tried  they  gave  the  plaintiffs  costs  of  course,  when  s 
claim  of  title  to  real  property  arose  upon  the  pleadings,  and  in 
actions  of  which  a  court  of  a  justice  of  the  peace  had  no  jurisdic- 
tion ;  and  an  action  of  the  present  description  was  comprehended 
by  both  these  provisions.  For  a  claim  of  title  to  real  property  did 
arise  upon  the  pleadings,  and  it  was  an  action  which  could  not  be 
commenced  or  prosecuted  in  the  court  of  a  justice  of  the  peace. 
If  the  plaintiffs  had  recovered  judgment  they  would  consequently 
have  been  entitled  of  course  to  their  costs ;  and  where  that  is  the 
case,  the  next  section  secures  the  same  right  and  one  as  absolute  in 
its  form  to  the  defendants  when  they  succeed  in  the  action. 

Whether  the  case  be  considered  as  being  within  the  control  of 
the  provisions  of  the  Revised  Statutes,  as  they  have  been  amended 
by  the  act  of  1855,  or  those  of  the  Code  which  are  applicable  to 
civil  actions,  the  right  of  the  defendants  was  complete  to  their  costs 
upon  the  dismissal  of  the  plaintiffs'  complaint,  and  the  court  could 
not  properly  prevent  their  recovery  by  any  direction  to  that  effect 
given  in  its  judgment.  It  is  only  in  another  class  of  actions  that 
a  discretion  over  the  subject  of  costs  has  been  conferred  upon 
the  courts.  (Code,  §  306.) 

The  order  appealed  from  denying  the  defendants'  motion  should 
be  affirmed,  with  ten  dollars  costs  besides  disbursements ;  and  so 
much  of  the  judgment  as  dismissed  the  plaintiffs'  complaint  with- 
out costs  should  be  reversed.  That  will  leave  the  complaint  dis- 
missed unqualifiedly,  and  entitle  the  defendants  to  their  costs  of  the 
action  and  on  the  appeal  from  the  judgment,  to  be  adjusted  in  the 
usual  way. 

DAVIS,  P.  J.,  and  BRADY,  J.,  concurred. 


WALSH  v.  MEAD.  387 


FIRST  DEPAKTMENT,  OCTOBER  TERM,  1876. 


Order  denying  the  defendants'  motion  affirmed,  with  ten  dollars 
costs  and  disbursements ;  and  so  much  of  the  judgment  reversed  as 
denies  costs  to  defendants,  and  costs  are  allowed  to  the  defendants 
in  the  action  and  on  the  appeal. 


WILLIAM   WALSH,   RESPONDENT  v.  JANE   0.   MEAD, 

APPELLANT. 

Improper  construction  of  building,  causing  snow  to  fall  from  roof — liability  of  owner 
for  injuries  resulting  from. —  Negligence  —  Landlord  and  tenant  —  covenant  to 
repair. 

Where  the  roof  of  a  building,  in  a  large  city,  is  so  constructed  as  to  render  the 
snow  falling  upon  it  liable  to  be  precipitated  upon  the  sidewalk,  and  there  is  no 
adequate  guard  at  the  edge  to  retain  it,  it  is,  in  judgment  of  law,  a  nuisance. 

Where  one  passing  upon  the  sidewalk  is  struck  and  injured  by  snow  which  has 
slid  from  a  roof,  so  constructed,  the  owner  of  the  building  is  liable  for  the 
injuries  thereby  occasioned,  even  though"  the  building  be  at  the  time  in  the 
occupation  of  a  tenant,  who  is  bound  to  make  all  needful  repairs. 

Where  premises  are  affected  by  a  nuisance  at  the  time  of  their  demise,  the  owner 
is  liable  for  any  injury  occasioned  by  it  to  a  third  person,  even  though  the  neg- 
ligence of  the  tenant  contributed  thereto. 

APPEAL  from  judgment  in  favor  of  the  plaintiff,  entered  on  the 
verdict  of  a  jury. 

This  action  was  brought  by  the  plaintiff  to  recover  damages  for 
injuries  caused  by  the  sliding  of  a  quantity  of  snow  from  the  roof 
of  91  South  street,  in  the  city  of  New  York,  on  the  27th  day  of 
January,  1871. 

The  action  was  based  on  the  negligence  of  the  defendant  as  the 
owner  of  the  premises. 

The  answer  admitted  the  defendant  to  have  been  the  owner  of  the 
premises,  but  denied  the  other  allegations  of  the  complaint,  and 
alleged  that  on  the  27th  of  January,  1871,  the  premises  in  question 
were  under  lease  for  a  term  of  years,  and  that  the  lessee  was  in 
actual  possession,  under  covenants  to  repair. 

It  was  shown  on  the  trial  that  the  plaintiff  was  passing  on  the 
sidewalk,  in  front  of  91  South  street,  in  company  with  a  man  by  the 
name  of  Anderson,  and  that  a  quantity  of  snow  slid  from  the  roof 


388  WALSH  v.  MEAD. 


FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 


of  the   building   upon    both   of    them,   and   caused   the   injuries 
complained  of. 

It  was  shown  that  the  house  had  a  slanting  roof,  but  did  not 
have  a  snow-guard  on  the  side  toward  the  street,  and  that  the 
gutter  broke  away  in  the  center  at  the  time  of  the  sno\\  -slide. 

Evidence  was  given  tending  to  show  that  a  snow-guard  or  snow- 
board is  an  essential  appliance  on  slant-roofed  buildings,  for  the 
protection  of  persons  traveling  on  the  walks  below,  and  that  one 
was  put  upon  these  premises  after  the  accident. 

A  girder  or  stick  of  timber  was  near  or  upon  the  curb-stone 
opposite  these  premises,  at  the  time  of  the  accident,  over  which  it 
was  claimed  that  the  plaintiff  was  pulled  by  Anderson  when  the 
accident  occurred  ;  and  prior  thereto,  and  after  the  defendant  had 
leased  the  premises,  a  mansard  roof  had  been  placed  upon  the  adjoin- 
ing building,  which  extended  somewhat  above  the  roof  of  defend 
ant's  premises,  and  which  she  claimed  rendered  the  premises  more 
dangerous  than  at  the  time  of  the  demise. 

Oeo.  V.  N.  Baldwin,  for  the  appellant.  It  is  a  well  settled 
principle  of  the  common  law  that  the  occupier,  and  not  the  land- 
lord, is  bound  as  between  himself  and  the  public,  to  keep  build- 
ings, and  other  structures  abutting  upon  the  common  highway, 
in  repair,  so  that  they  may  be  safe  for  the  use  of  travelers  thereon, 
and  i&prima  facie  liable  to  third  persons  for  damages  arising  from 
any  defect.  (Regina  v.  Watts,  1  Salk.,  357  ;  Cfieetham  v.  Hamp- 
ton, 4:  T.  R.,  318;  Regina  v.  Bucknall,  2  Lord  Raymond,  804; 
Lowell  v.  Spaulding,  4:  Gush.,  277;  Oakham  v.  Holbrook,  11  id., 
299  ;  Kirby  v.  The  Boylston  Market  Association,  14  Gray,  249.) 
In  order  to  hold  the  landlord,  the  construction  must  be  not  only 
faulty,  but  damages  must  immediately  and  necessarily  flow  from 
the  construction  ;  but  if  the  construction  be  usual,  and  has  been  up 
for  years,  without  damage  or  danger,  the  landlord  will  not  be  held 
liable,  even  though  another  construction  might  have  avoided  it. 
(Fish  v.  Dodge,  4  Denio.  311 ;  Picard  v.  Collins,  23  Barb.,  444.) 
The  landlord  will  not  be  held  liable  if  the  construction  is  not  in 
itself  a  nuisance,  but  becomes  so  either  by  the  method  of  its  use 
by  the  tenant,  or  by  neglect  on  his  part ;  in  other  words,  if  he  fail 
to  take  such  care  to  avoid  accident  as  is  incumbent  upon  every  man 
in  the  management  of  property.  (Rich  v.  Basterfield,  4  0.  B.,  783 


WALSH  v.  MEAD.  389 


FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

Clancy  v.  Byrne,  56  N.  Y.,  129 ;  Gandy  v.  Jubber,  33  L.  J.  [Q.  B.] 
151 ;  5  B.  &  S.,  78  ;  .fia&m  v.  Brown,  1  E.  D.  Smith,  36;  City 
of  Lowell  v.  Spaulding,  4  Gush.,  277.) 

TF".  R.  Beebe,  for  the  respondent.  It  is  well  settled  that  the 
landlord  is  liable  for  injuries  resulting  from  defective  construction, 
or  delects  existing  at  the  time  of  the  demise,  even  though  the 
premises  were  at  the  time  of  the  accident  in  the  possession  of  A 
lessee  who  had  covenanted  to  do  all  needful  repairs.  (Moody  v. 
The  Mayor,  43  Barb.,  282;  Whalen  v.  Gloucester,  4  Hun,  24.) 
If  the  plaintiff  heard  the  snow  sliding  from  the  roof,  and  appre- 
hended danger  therefrom,  it.  would  have  been  negligence  on ,  his 
part  to  remain  beneath  it.  It  was  his  duty  to  flee  the  imminent 
peril,  and  having  no  time  to  mature  a  plan,  it  would  be  excusable, 
if  in  escaping  one  danger  he  should  fall  upon  another.  The 
defendant  would  be  liable  as  the  one  whose  negligence  had  put 
him  to  the  extremity.  (Whartou's  Law  of  Negligence,  §§  94,  304, 
337,  377;  Buel  v.  N.  Y.  Cent.  B.  R.  Co.,  31  N.  Y.,  314;  Coulter 
v.  Am.  Un.  Exp.  Co.,  5  Lans.,  67;  Stokes  v.  Saltonstall,  13 
Peters,  181.) 

DANIELS,  J. : 

The  appeal  taken  in  this  cause  is  exclusively  from  the  judgment 
recovered  in  the  action,  and,  consequently,  questions  of  law  are 
alone  presented  for  the  decision  of  this  court.  An  appeal  upon 
the  law  is  all  that  can  be  taken  from  a  judgment,  when  it  has  been 
entered  upon  the  direction  of  a  single  judge  of  the  same  court. 
The  only  cases  in  which  the  facts  can  be  reviewed,  by  an  appeal 
from  the  judgment,  are  those  where  the  trial  has  been  had  by  the 
court,  or  before  referees.  (Code,  §  348.)  Where  the  trial  has  been 
by  jury,  the  facts  of  the  case  can  only  be  reviewed  by  way  of  a 
motion  for  a  new  trial  on  the  minutes,  or  upon  a  case,  and  on  an 
appeal  from  the  order  entered  upon  the  decision,  when  the 
motion  has  been  heard  upon  the  minutes,  or  by  the  Special 
Term.  (Code,  §§  264,  265,  349,  sub.  2 ;  Carpenter  v.  Beare,  4 
Hun,  509.)  A  motion  for  a  new  trial  was  made  by  the  defend- 
ant upon  the  minutes,  and  denied,  but,  as  no  appeal  from  the 
order  was  taken,  the  objections  urged  against  the  verdict  on  the 
evidence  alone,  are  not  now  before  this  court  for  its  consideration 


890  WALSH  «.  MEAD. 


FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 


The  legal  points  in  the  case  arise  upon  the  motion  made  for  a 
nonsuit,  and  the  exceptions  presented  to  the  charge  of  the  court. 
The  action  was  for  damages  caused  by  an  injury  to  the  plain- 
tiff's person  by  the  sliding  of  snow  from  the  roof  of  a  building 
owned  by  the  defendant,  and  striking  the  plaintiff  as  he  was  pass- 
ing along  the  sidewalk.  The  building  was  at  the  time  in  the 
possession  of  a  tenant  under  a  lease  requiring  that  the  tenant 
should  keep  it  in  repair.  And  for  that  reason  it  has  been 
strenuously  insisted  that  the  defendant  as  owner  was  not  legally 
liable  for  the  consequences  of  the  accident.  That  would  very 
clearly  be  the  case  if  it  had  resulted  from  the  omission  of  the  ten- 
ant to  keep  the  building  in  repair,  or  from  the  manner  in  which  it 
was  used  and  occupied  by  him.  But  the  theory  of  the  plaintiff's 
case  was,  that  the  roof  of  the  building  had  not  been  properly  con- 
structed or  guarded  by  the  owner,  and  that  it  was  for  that  reason 
the  snow  was  precipitated  from  it  on  the  person  of  the  plaintiff. 
Evidence  was  given  tending  to  support  that  view  of  the  fact,  and 
while  it  was  controverted  on  the  part  of  the  defendant,  the  inquiry 
as  to  its  truth  still  remained  a  proper  one  for  the  decision  of  the 
jury.  And  they  have  found  the  fact  as  it  was  asserted  on  behalf 
of  the  plaintiff.  From  that  it  must  be  assumed,  in  disposing  of  this 
case,  that  the  roof  of  the  building  was  so  constructed  as  to  render 
the  snow  falling  upon  it  liable  to  be  precipitated  upon  the  side- 
walk below,  and  that  it  had  no  guard  at  its  edge  which  could  be 
reasonably  expected  to  prevent  that  result. 

A  roof  so  constructed  and  maintained  in  a  large  city  is  in  judg- 
ment of  law  a  nuisance,  for  it  necessarily  imperils  the  safety  of 
persons  passing  below  it  in  the  lawful  use  of  the  street  upon  which 
it  fronts.  Any  act  of  an  individual  "  though  performed  on  his 
own  soil,  if  it  detracts  from  the  safety  of  travelers,  is  a  nuisance." 
(Shipley  v.  Fifty  Associates,  101  Mass.,  251,  253  ;  same  case,  106 
id.,  194,  198,  199.)  In  one  of  its  essential  features,  it  is  true,  that 
case  differed  from  the  one  now  before  this  court,  for  it  appeared 
that  the  landlord  had  retained  the  supervision  of  the  build- 
ing. (See,  also,  Kirby  v.  Boyhton,  14  Gray,  249.)  But  the 
proposition  has  been  held  to  be  a  sound  one  by  nearly  all 
the  cases  requiring  its  consideration,  that  the  landlord  or  owner 
will  remain  liable  after  a  lease  and  exclusive  possession  under 


WALSH  v.  MEAD.  391 


FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 


it  taken  by  a  tenant  of  premises  affected  by  a  nuisance  at  the  time 
of  the  demise,  for  an  injury  occasioned  by  it  to  a  third  person,  and 
upon  general  principles,  he  ought  not  to  be  exonerated  from  that 
liability,  even  though  the  tenant's  negligence  combines  with  the 
same  wrong  in  producing  such  a  result.  The  erection  and  main- 
tenance of  a  nuisance  is  a  wrong,  and  by  leasing  the  building  affected 
by  it  to  another  person,  the  owner  continues  it  and  stipulates  for 
the  enjoyment  of  a  profit  from  it.  That  has  always  been  held  to 
be  sufficient  to  render  him  accountable  to  innocent  third  persona 
for  the  consequences  of  injuries  received  by  them  from  it.  In  the 
case  of  The  Mayor  of  Albany  v.  Cttnliff  (2  Comst.,  165),  it  was 
stated  to  be  the  law,  that  "  a  party  who  has  erected  a  nuisance  will 
sometimes  be  answerable  for  its  continuance  after  he  has  parted 
with  the  possession  of  the  land.  But  it  is  only  where  he  continues 
to  derive  a  benefit  from  the  nuisance,  as  by  demising  the  premises 
and  receiving  rent,  "  or  where  he  conveys  the  property,  with  cove- 
nants for  the  continuance  of  the  nuisance."  (Id.,  174,  175  ;  Hanse 
v.  Cowing,  2  Lans.,  288 ;  Taylor's  Land,  and  Ten.  [2d  ed.],  § 
206  ;  Fish  v.  Dodge,  4  Denio,  311 ;  Waggoner  v.  Jermaine,  3  id., 
306  ;  Moody  v.  Mayor,  etc.,  43  Barb.,  282 ;  Irvin  v.  Wood,  4  Robt., 
138 ;  Irvin  v.  Fowler,  5  id.,  482  ;  Whalen  v.  Gloucester,  US.  C.  N. 
Y.  [4  Hun],  24;  Bellows  v.  Sackett,  15  Barb.,  96 ;  Pickard  v.  Col- 
lins, 23  id.,  444 ;  Conhocton  Stone  Company  v.  Buffalo,  N.  Y.  and 
Erie  Railway  Co.,  52  id.,  390 ;  Swords  v.  Edgar,  59  N".  Y.,  28.) 
This  point  was  not  presented  by  the  case  of  Clancy  v.  Byrne  (56  N. 
Y.,  129).  And  Leonard  v.  Stover  (115  Masb.;  86),  which  held  the 
owner  not  to  be  liable  in  a  case  similar  to  the  present  one,  was  con- 
sidered to  have  been  erroneously  decided  in  the  decision  made  in 
Swords  v.  Edgar  (su/pra).  This  case  too  is  even  distinguishable 
from  that,  in  the  circumstance  that  it  cannot  be  said  that  the  tenant 
was  negligent  for  not  removing  the  snow,  because  the  injury  hap- 
pened so  soon  after  it  fell.  The  slide,  as  the  jury  have  found  the 
fact,  was  not  caused  by  the  act  or  omission  of  the  tenant,  but  by 
the  steepness  of  the  roof  upon  which  as  it  melted  it  could  not 
remain,  and  it  would  obviously  have  been  the  same  if  the  building 
had  not  been  leased,  but  had  remained  unoccupied  ;  no  agency  of 
the  tenant  intervened  to  produce  the  result,  but  it  was  solely 
Attributable  to  the  fact  that  the  roof  was  so  steep  that  it  could  not 


392  WALSH  t>.  MEAD. 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1878. 

retain  the  snow,  and  such  a  structure  must  clearly  endanger  the 
safety  of  persons  passing  upon  the  walk  beneath  it. 

On  the  part  of  the  defendant,  evidence  was  given  tending  to 
show  that  another  person  walking  with  the  plaintiff  pulled  hinc 
sideways  against  a  girder,  and  in  that  manner  caused  the  injury  ol 
which  he  complained.  And  upon  that  part  of  the  case  it  was  held 
by  the  court,  and  the  jury  were  charged,  that  if  "  Anderson  jumped 
on  one  side  over  a  girder,"  which  was  lying  in  or  near  the  gutter, 
"and  having  hold  of  the  plaintiff  pulled  him  sideways  and  caused 
Walsh  to  trip  or  stumble  over  the  girder,"  and  he  was  injured  in 
that  way,  and  not  struck  by  the  mass  of  falling  snow,  then  the 
defendant  was  not  liable.  The  proposition  was  clearly  and  fully 
stated  by  the  learned  judge,  and  it  was  all  upon  this  subject  which 
the  defendant  couljl  reasonably  expect  should  be  said,  and  she  had 
no  right  to  claim  that  it  should  be  repeated.  But  after  the  charge 
was  delivered  her  counsel  requested  the  court  to  say  that,  "if  the 
jury  believed  from  the  evidence  that  the  witness  Anderson,  at  the 
time  of  the  accident,  laid  hold  of  the  plaintiff  and  drew  him  over 
the  girder,  and  that  by  reason  thereof  the  injury  took  place,  the 
falling  of  the  snow  is  too  remote,  and  the  plaintiff  cannot  recover." 
That  is  precisely  what  the  learned  justice  had  previously  declared, 
and  nothing  had  been  afterwards  said  in  any  degree  tending  to 
qualify  or  change  the  proposition.  If  it  was  obscured  by  any 
thing  said  by  way  of  responding  to  the  proposition  again,  it  could 
not  have  been  from  any  design  to  modify  or  change  it,  because  it 
had  been  so  decidedly  and  unequivocally  held  before  that.  But 
rather  from  the  effort  made  to  secure  what  was  only  a  repetition  of 
the  comments  made  upon  a  subject  already  clearly  and  justly  dis- 
posed of  in  favor  of  the  defendant,  but  without  either  withdraw- 
ing or  repeating  what  had  been  so  well  stated  in  this  connection, 
the  learned  justice  added  that,  "if  Anderson  and  Walsh  heard 
this  snow,  and  were  both  trying  to  escape  the  danger  of  injury 
therefrom,  and  Anderson  by  a  sudden  impulse,  arising  from  such 
danger,  did  pull  Walsh  to  assist  him  in  escaping  the  danger,  the 
alleged  negligence  of  the  defendant  is  not  too  remote  to  be  con- 
sidered as  having  produced  the  accident."  It  will  be  seen  that  it 
•was  not  held  that  the  defendant  would  be  liable  if  he  was  injured 
by  being  pulled  over  the  girder,  and  in  view  of  what  had  been 


WALSH  v.  MEAD.  393 


FIKST  DEPARTMENT,  OCTOBER  TERM,  1876. 


so  clearly  said  before,  that  could  not  have  been  intended  nor  under- 
stood by  the  jury.  For  the  purpose  of  considering  the  effect,  the 
charge  must  be  regarded  as  an  entirety.  And  that  renders  it 
apparent,  that  what  was  to  be  understood  from  this  statement  was, 
that  the  defendant  was  not  entitled  to  be  exonerated  from  liability, 
even  if  Anderson,  acting  upon  a  sudden  impulse  created  by  the 
presence  of  danger,  pulled  the  plaintiff  to  assist  him  in  escaping, 
if  the  falling  snow  still  produced  the  injury.  That  construction  is 
required  by  the  circumstances  that  it  had  been  previously  held  in 
distinct  and  unqualified  terms,  that  the  defendant  was  not  liable  if 
the  plaintiff  was  injured  by  being  pulled  against  the  girder,  and 
the  omission  to  state  that  the  defendant  would  be  liable  for  the  con- 
sequences of  such  an  act  in  response  to  this  request.  The  court 
did  not  decline  so  to  charge,  because  that  had  already  been  done, 
and  what  had  been  said  upon  the  subject  was  left  without  qualifi- 
cation. There  was  no  ground,  therefore,  on  which  an  exception  to 
a  refusal  could  properly  be  placed. 

The  court  was  also  requested  to  charge :  "  That  if  the  independ- 
ent act  of  a  third  person  intervened  between  this  wrong  complained 
of  and  the  act  which  was  the  immediate  cause  of  the  injury,  the 
injury  was  too  remote,  and  the  plaintiff  cannot  recover."  To  that 
the  court  responded :  "  If  Anderson  and  the  plaintiff,  Mr.  Walsh, 
when  going  up  South  street,  saw  or  heard  this  mass  of  snow  coming, 
and  both  Anderson  and  Walsh,  by  a  sudden  impulse  to  avoid  the 
snow,  jumped  one  side,  and  in  that  way  the  plaintiff  was  injured, 
then  the  defendant's  negligence  would  not  be  too  remote,  because 
they  would  not  have  jumped  but  for  the  falling  of  the  snow,  and 
the  danger  in  which  they  were  placed  by  its  fall."  No  exception 
was  taken  to  this  proposition,  nor  to  any  supposed  omission  to 
embody  in  it  the  full  effect  of  the  request.  But  if  there  had  been 
to  the  omission  to  charge  it  as  it  was  stated,  it  would  be  completely 
answered  by  the  fact  that  the  court  had  already  charged  it,  so  far  as 
it  was  applicable  to  what  the  evidence  on  the  part  of  the  defendant 
tended  to  show,  that  such  an  independent  act  had  intervened  and 
caused  the  injury.  The  proposition,  which  was  stated  in  this  con- 
nection by  the  court,  in  substance,  was,  that  if  the  plaintiff,  actuated 
by  fears  of  apparent  danger,  was  injured  in  his  endeavors  to  avoid 
it,  that  would  not  of  itself  relieve  the  defendant  from  liability 
HUN— VOL.  Vin.  50 


WALSH  v.  MEAD. 


FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 


And  that  seems  to  be  sound,  and  sustained  by  authority.  (Bud  v. 
New  York  Central  R.  R.  Co.,  21  N.  Y.,  314 ;  Coulter  v.  American 
M.  U.  Exp.  Co.,  5  Lans.,  67;  Stokes  v.  Saltonstatt,  13  Peters,  181.) 

It  has  also  been  claimed,  that  the  court  should  have  allowed 
greater  effect  than  was  given  to  the  circumstance  of  other  buildings 
being  in  the  same  condition  as  this  one  ;  and  to«a  change  made  in 
the  elevation  of  an  adjoining  building.  As  to  the  latter,  it  was 
held  that  the  defendant  was  not  liable  if  that  caused  the  accumula 
tion  of  the  snow.  And  the  former  was  also  charged,  with  the 
qualification  that  the  defendant  should  have  adopted  such  safe- 
guards to  prevent  the  sliding  of  the  snow  from  the  roof,  as  was 
sanctioned  by  more  modern  experience  than  that  existing  when  the 
building  was  erected.  That  seems  to  have  been  entirely  sound. 
But  if  it  were  not,  as  no  exception  was  taken  in  either  case,  the 
judgment  could  not  be  reversed  by  reason  of  it.  The  only  excep- 
tion taken  was  at  the  end  of  the  charge,  and  then  only  to  the  propo- 
sition held  concerning  the  act  of  Anderson  in  pulling  the  plaintiff. 
But  if  that  could  be  extended  so  far  as  to  nominally  include  all  that 
had  been  said  by  way  of  response  to  the  requests,  it  would  be  too 
general  and  indefinite  to  be  of  any  service  to  the  defendant.  (Walah 
v.  Kelly,  40  N.  Y.,  556 ;  Requa  v.  City  of  Rochester,  45  id.,  130 ; 
Ayrault  v.  Pacific  Bank,  47  id.,  570.)  The  charge  upon  the  whole 
case  was  as  favorable  as  the  defendant  was  entitled  to  have  it  under 
the  evidence.  And  if  "  the  minds  of  the  jury  were  confused,  and 
discriminations  they  might  otherwise  have  made  were  prevented," 
it  was  evidently  because  the  charge,  as  it  was  delivered,  was 
obscured  by  the  responses  made  at  the  defendant's  request.  It  not 
unfrequently  proves  to  be  the  case,  that  an  entirely  just  and  proper 
charge  is  rendered  of  but  little  benefit  to  the  party  whose  rights 
have  been  carefully  guarded  by  it,  in  consequence  of  detached 
propositions  requiring  portions  of  it  to  be  repeated,  or  the  court  to 
extend  them  farther  than  either  the  law  or  the  evidence  would  appear 
to  justify.  That  may  be  unfortunate  for  the  party  insisting  upon  it, 
but  the  court  would  not  be  justified  in  distorting  or  harshly  constru- 
ing the  charge  as  an  entirety,  to  relieve  the  party  from  its  effects. 

The  judgment  should  be  affirmed. 

DAVIS,  P.  J.,  and  BEADY,  J.,  concurred. 

Judgment  affirmed. 


BARRY  v.  BRUNE.  395 


FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 


ROSALIE  C.  BARRY,  RESPONDENT,  v.  WILLIAM  H.  BRUNE 
AND  J.  M.  HARRIS,  APPELLANTS,  IMPLEADED  WITH  THE 
MUTUAL  LIFE  INSURANCE  COMPANY,  RESPONDENT. 

Insurance  on  life  of  husband  for  wife's  benefit  —  assignment  of,  by  wife,  through 
coercion  —  Trust — Judgment  of  foreign  court. 

The  plaintiff,  under  the  influence  and  coercion  of  her  husband,  assigned  to  the 
defendant  Brune  two  policies  of  insurance,  issued  to  her  on  the  life  of  her  hus- 
band, to  secure  a  debt  due  from  him  to  the  defendant.  The  latter,  fearing  that 
the  assignment  was  invalid  under  the  laws  of  this  State,  in  pursuance  of  an 
arrangement  with  the  company,  allowed  the  policies  to  be  forfeited  for  non- 
payment of  premiums,  and  received  new  policies  from  the  company  for  his 
benefit  as  a  creditor,  for  the  same  amounts,  bearing  the  same  numbers,  refer- 
ring to  the  same  register  in  the  company's  books,  and  for  the  same  premiums, 
except  that  the  latter  were  payable  semi-annually  instead  of  annually,  such 
policies  being  issued  upon  the  original  applications  and  without  a  new 
examination. 

Held,  that  the  new  policies  were  to  be  considered  as  renewals  of  the  old  ones,  and 
subject  to  a  trust  in  favor  of  the  plaintiff  the  same  as  was  impressed  upon  the 
original  ones. 

After  the  commencement  of  this  action,  brought  to  restrain  the  company  from 
paying  over  the  amount  of  the  policies  to  the  defendant  Brune,  and  to  compel 
the  payment  thereof  to  the  plaintiff,  Brune  commenced  an  action  against  the 
company  in  the  United  States  Circuit  Court,  in  Maryland,  upon  the  new  policies, 
and  recovered  judgment  for  the  amount  thereof.  Held  (1),  that  this  judgment 
was  impressed  with  the  same  trusts  in  favor  of  the  plaintiff  as  were  the  poli- 
cies ;  (2),  that  it  only  decided  that  the  company  was  bound  to  pay  the  money  to 
the  defendant  in  pursuance  of  its  agreement  so  to  do,  and  that  it  did  not  decide 
that  he  would  be  entitled  to  hold  the  money  for  his  own  use,  and  free  from  the 
trust  existing  in  favor  of  the  plaintiff. 

Bfld,  further,  that  it  was  within  the  power  of  this  court  to  enjoin  the  defendant 
Brune  from  taking  any  proceedings  to  enforce  the  collection  of  the  judgment 
recovered  by  him  in  Maryland,  and  that  a  judgment  to  that  effect  in  this  case 
was  proper,  and  should  be  affirmed. 

APPEAL  from  a  judgment  in  favor  of  the  plaintiff,  entered  on  the 
trial  of  this  action  at  the  Special  Term. 

S.  P.  Nash,  for  the  appellants. 

John  K,  Porter,  Henry  E.  Dames  and  Jitlien  T.  Dames,  foi 
The  Mutual  Life  Insurance  Company,  respondent. 

Edmund  Randolph  Robinson,  for  the  plaintiff  respondent. 


896  BARRY  v.  BRUXE. 


FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 


DANIELS,  J. : 

The  object  of  this  action  was  to  prevent  the  moneys  claimed 
upon  two  policies  of  life  insurance,  issued  by  the  defendant  The 
Mutual  Life  Insurance  Company,  from  being  paid  over  to  the 
defendant  Brune,  or  his  assignee,  and  to  secure  an  adjudication 
that  the  policies  were,  in  fact,  the  property  of  the  plaintiff,  and  that 
the  moneys  owing  upon  them  should  be  paid  to  her.  The  policies 
were  issued  in  the  name  of,  and  to  the  defendant  William  H.  Brune, 
upon  the  life  of  John  S.  Barry,  the  plaintiffs  husband.  And  when 
they  were  issued,  and  at  all  times  since  then,  Brune,  as  a  creditor, 
had  an  insurable  interest  in  the  life  of  Barry  exceeding  the  amount 
insured.  One  of  the  policies  was  for  the  sum  of  $20,000,  and  the 
other  for  $5,000,  and  they  were  both  issued  on  or  about  the  18th 
day  of  January,  1872,  and  Barry,  whose  life  was  insured,  died  in 
the  following  month  of  March. 

Before  either  of  these  policies  was  issued,  two  other  policies  in 
the  same  amount  were  issued  by  the  same  company,  upon  the  same 
life,  in  favor  of  the  plaintiff,  who  was  then  the  wife  of  John  S. 
Barry.  The  first  was  dated  on  the  llth  day  of  January,  1867, 
for  the  sum  of  $20,000,  at  the  annual  premium  of  $592.80, 
payable  on  that  day  in  each  year.  And  the  second  was  dated  on 
the  9th  of  December,  1870,  for  the  sum  of  $5,000,  and  it  was 
issued  in  consideration  of  the  payment  of  an  annual  premium  of 
$168.60,  payable  on  that  day  in  each  year.  The  premiums  on  these 
policies  were  properly  paid  up  to  and  including  the  year  1871, 
when  the  plaintiffs  husband,  John  S.  Barry,  became  embarrassed 
in  his  business,  which  was  that  of  banker.  And  at  his  request  the 
defendant  Brune  loaned  and  advanced  him  the  notes  of  his  firm 
for  about  the  sum  of  $80,000.  These  notes  were  to  be  paid  by 
Barry,  and,  in  the  mean  time,  he  was  to  secure  the  firm  of  Brune 
&  Sons  against  their  liability  upon  them.  For  that  purpose,  in 
July,  1871,  the  plaintiff  under  the  persuasion,  controlling  influence 
and  coercion  of  her  husband,  executed  an  assignment  in  blank 
which  was  afterwards  so  filled  up  by  his  direction  as  to  assign  the 
two  policies  in  suit  to  the  defendant  Brune,  and  it  was  then  mailed 
to  him  by  depositing  it  in  the  post-office  at  the  city  of  New  York, 
addressed  to  him  at  Baltimore,  which  was  the  place  of  his  resi- 
dence. He  held  the  assignment  and  the  policies  in  that  form  until 


BARRY  v.  BRUNE.  397 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

the  days  on  which  the  premiums  respectively  became  payable  and 
then  omitted  to  pay  such  premiums  in  order  to  secure  a  forfeiture 
of  the  policies  for  that  default,  and  have  others  issued  to  him  in 
his  own  name  in  their  place.  It  appears  to  have  been  understood 
between  himself  and  the  agent  of  the  insurance  company  at  Balti- 
more, that  the  policies  should  be  so  changed  partially,  if  not 
wholly  for  the  purpose  of  correcting  an  infirmity  in  the  title  created 
by  the  assignment,  arising  out  of  the  suspected  inability,  under  the 
Jaws  of  this  State,  of  a  married  woman  to  transfer  the  insurance 
effected  for  her  benefit  upon  the  life  of  her  husband. 

By  a  clause  contained  in  each  of  the  policies,  they  were  liable  to 
forfeiture  for  the  non-payment  of  the  premiums  on  the  days  when 
payment  should  be  made,  and  after  such  forfeiture  the  company 
was  in  terms  exonerated  from  all  liability  upon  them,  but  that  was 
in  this  case  qualified  by  the  understanding  that  the  assignee  was  to 
receive  others  in  his  own  name  in  lieu  of  them.  Pursuant  to  that 
the  policies  were  allowed  to  lapse  for  such  non-payment  and,  with  the 
assent  and  co-operation  of  Barry,  those  now  in  suit  were  applied 
for  and  received  by  the  defendant  Brune.  They  were  issued  and 
delivered  to  him  upon  the  basis  of  the  applications  and  examina- 
tions made  for  those  held  by  the  plaintiff;  they  bore  the  same 
numbers  respectively  ;  they  were  for  the  same  amounts,  referred 
to  the  same  registers  in  the  company's  books,  and  were  for  the  same 
premiums,  but  payable  in  semi-annual  instead  of  annual  payments, 
as  the  policies  which  had  lapsed,  and  they  were  issued  in  considera- 
tion of  the  payment  of  the  premiums  remaining  unpaid  on  the 
original  policies,  and  that  to  the  extent  of  $169.48  was  made  from 
dividends,  or  profits,  credited  to  the  plaintiff  by  the  company  on 
the  larger  and  first  policy  it  had  delivered  to  her. 

It  is  entirely  clear  from  these  facts,  that  no  substantial  change  was 
made  in  the  insurance  by  what  transpired.  The  new  policies  were 
a  substitute  for  those  previously  issued,  a  continuation  in  fact  of  the 
same  insurance  but  in  the  name  and  for  the  declared  benefit  of  the 
defendant  Brnne.  They  were  designed  simply  to  secure  him  the 
same  ad  vantage  expected  to  have  been  derived  from  the  assignment 
alone,  and  which  would  have  resulted  from  it,  if  that  had  been  a 
valid  and  binding  instrument.  It  was  not  intended  to  create  a 
new  insurance,  but  simply  to  render  that  previously  made  effectual 


398  BARRY  v.  BRUNE. 


FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 


and  irrevocable  in  the  hands  of  the  defendant  Brune.  That  if  very 
apparent  from  the  circumstances  already  mentioned,  and  from  the 
facts  that  no  increase  or  change  was  made  in  the  amount  of  the 
insurance,  or  of  the  premiums  to  be  paid  for  it.  Neither  party 
intended  or  expected  that  the  company  should  be  held  liable  on  the 
four  policies,  but  that  the  first  two  should  expire  according  to  their 
terms,  and  the  others  be  substituted  in  their  place,  and  that  is  what 
was  actually  effected.  It  was  done  to  render  the  insurance  a  valid 
security  in  the  hands  of  the  defendant  Bruue,  which  it  was  sup- 
posed the  assignment  alone  had  failed  to  accomplish.  That  waa 
the  nature  of  the  understanding  entered  into  with  the  agent  of 
the  insurance  company,  and  its  performance  was  consummated, 
as  far  as  that  was  practicable,  by  the  forfeiture  of  the  old  and 
delivery  of  the  new  policies.  They  made  the  same  insur- 
ance with  the  simple  change,  that  from  that  time  it  stood  in 
Brune's  name  instead  of  being  held  by  him  as  assignee ; 
and  it  was  supported  by  the  identical  interest  in  the  life  of  the 
debtor,  Barry,  as  the  assignment  was  made  to  protect.  The  same 
end  was  to  be  subserved  by  each  of  the  instrumentalities,  that  was 
the  security  of  the  creditor  upon  the  obligation  of  the  debtor.  In 
one  form  it  was  to  be  done  by  means  of  the  assignment,  which,  if 
it  had  been  valid,  would  have  entitled  him  to  the  insurance  moneys 
for  its  extinguishment ;  and  in  the  other  by  a  surrender  of  his  formal 
position  as  assignee  for  an  insurance  in  consideration  of  it  directly 
in  his  own  name.  The  object  to  be  attained  by  each  was  precisely 
the  same ;  and  if  Barry  had  lived  and  paid  the  notes,  there  can  be 
no  doubt,  from  the  nature  of  the  transaction,  that  the  plaintiff 
would  have  been  concededly  entitled  to  the  benefit  of  the  final 
insurance.  Her  policies  were  the  moving  or  inducing  cause  of 
those  issued  to  the  defendant  Brune.  If  they  had  not  been,  there 
is  good  reason  for  believing  that  a  new  application  and  examination 
would  have  been  required,  together  with  an  increased  premium  for 
the  additional  age  of  Mr.  Barry  at  the  time.  But  instead  of  being 
an  independent  transaction,  the  two  policies  finally  issued,  proceeded 
from  and  depended  upon  the  others,  in  such  a  manner  as  to  form  a 
mere  continuation  of  the  same  insurance.  The  liability  created  by 
those  issued  to  the  plaintiff  was  carried  into  those  received  for  them 
by  Brune,  the  defendant,  and  for  the  purpose  of  determining  the 


BARRY  v.  BRUNE.  399 


FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 


rights  of  the  parties  they  must  be  regarded  as,  in  all  essential 
respects,  the  same.  For  that  reason,  if  the  policies  assigned  were 
necessarily,  though  not  designedly,  held  by  the  defendant  Brune 
for  the  benefit  of  the  plaintiff,  and  not  for  himself  or  his  firm,  the 
same  trust  impressed  itself  upon  those  substituted  in  their  place. 
It  is  a  settled  principle,  both  in  law  and  equity,  that  the  true  owner 
of  property  cannot  be  deprived  of  his  or  her  right  to  it  by  chang- 
ing it  into  something  else,  as  long  as  the  identity  can  be  ascertained 
and  traced.  (Silsbury  v.  McCoon,  3  Cow.,  379,  390.)  The  rule 
is  broad  and  liberal,  holding  that  "  wherever  the  property  of  a  party 
has  been  wrongfully  misapplied,  or  a  trust  fund  has  been  wrongfully 
converted  into  another  species  of  property,  if  its  identity  can  be 
traced,  it  will  be  held  in  its  new  form  liable  to  the  rights  of  the 
original  owner,  or  cestui  que  trust.  The  general  proposition,  which 
is  maintained  both  at  law  and  in  equity,  upon  this  subject  is,  that 
if  any  property  in  its  original  state  and  form  is  covered  with  a  trust 
in  favor  of  the  principal,  no  change  of  that  state  and  form  can  divest 
it  of  such  trust,  or  give  the  agent  or  trustee  converting  it,  or  those 
who  represent  him  in  right,  not  being  l>ona  fide  purchasers  for  a 
valuable  consideration  without  notice,  any  more  valid  claim  in 
respect  to  it  than  they  "respectively  had  before  such  change." 
(2  Story's  Equity  Jur.  [llth  ed.],  572,  §  1258.)  And  it  has  been 
further  affirmed,  by  the  same  author,  that  "  it  will  make  no  differ- 
ence in  law,  as  indeed  it  does  not  in  reason,  what  change  of  form, 
different  from  the  original,  the  property  may  have  undergone, 
whether  it  be  changed  into  promissory  notes  or  other  securities,  or 
into  stock  or  into  money.  For  the  product  of  the  substitute  for  the 
original  thing  still  follows  the  nature  of  the  thing  itself,  as  long  as 
it  can  be  ascertained  to  be  such,  and  the  right  only  ceases  when 
the  means  of  ascertainment  fails."  (Story  on  Agency  [4th  ed.],  §§ 
229-231.)  And  the  principle  has  been  frequently  applied  for  the 
protection  of  the  rights  of  the  assured  in  cases  in  which  one  policy 
has  been  surrendered  and  another  received  in  its  place,  on  the  basis 
of  the  original  insurance.  (Dutton  v.Willner,  52  N.  Y.,  312; 
Nesbitt  v.  Berridge,  10  Jurist  [N.  S.],  53  ;  Ghapin  v.  Fellowes,  36 
Conn.,  132 ;  Lemon  v.  Ph&nix  Life  Ins.  Co.,  38  id.,  294 ;  Nor 
vwod  v.  Guerdon,  60  111.,  253.) 

To  that  extent  it  is  entirely  applicable  to  the  present  controversy 


400  BARRY  v.  BRUNE. 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

even  if  the  defendant  Brnne  can  in  any  proper  sense  be  considered 
a  bonafoJt  assignee  of  the  original  policies.  For  by  the  statute  of 
the  State,  authorizing  a  married  woman  to  insure  the  life  of  her 
husband,  the  insurance  has  been  exonerated  from  the  rights  of  hip 
creditors,  and  placed  beyond  her  power  of  alienation  to  them 
(3  R.  S.  [5th  ed.],  240,  §  80  ;  Eadie  v.  Slimnwn,  26  N.  Y.,  9  ; 
Barry  v.  Equitable  Ins.  Uo.,  59  id.,  587.)  And  as  the  assignment 
proceeded  from  her  to  the  defendant  Brune,  he  had  constructive 
notice  of  that  infirmity  in  his  title  which  seems  to  have  been 
followed  by  actual  notice  of  the  fact,  before  the  conversion  of  the 
old  policies  into  the  new  ones.  He  was  not  a  lonafide  assignee 
therefore,  and  not  within  the  protection  often  secured  to  bona  fide 
purchasers  for  value  without  notice.  He  had  what  the  law  regards 
as  the  equivalent  of  actual  notice,  and  acquired  his  knowledge  of  the 
facts  from  which  it  proceeded,  before  he  endeavored  to  change  the 
form  of  the  policies.  When  he  made  that  change,  for  the  purpose  of 
defeating  the  rights  it  was  supposed  the  plaintiff  would  otherwise 
have  been  entitled  to  claim,  it  was  both  unauthorized  and  wrongful. 

But  even  if  he  had  been  an  assignee  for  value  without  notice,  his 
title  would  still  have  been  defective.  For  by  the  assignment 
which  was  made  no  title  whatever  to  the  policies  was  transferred  to 
him.  For  there  was  not  only  an  absence  of  power  to  make  a  valid 
assignment  in  the  assignor,  but  beyond  that,  it  never  received  that 
assent  from  her  which  was  necessary  to  render  it  binding  upon 
her.  It  was  found  as  a  fact,  upon  evidence  not  questioned  as 
insufficient,  that  she  executed  it  under  the  persuasion,  controlling 
influence  and  coercion  of  her  husband ;  and  that,  as  well  as  her 
want  of  power,  rendered  it  entirely  inoperative  against  her.  (Barry 
v.  Equitable  Life  Ins.  Co.,  supra  •  Whitridge  v.  Barry,  42  Md., 
140.)  For  that  reason,  as  the  insurance  continued  to  be  practically 
the  same  as  it  previously  had  been,  after  the  new  policies  were 
'ssued,  and,  in  substance,  only  a  continuation  of  that  which  had 
been  made  in  her  own  name,  she  was  entitled  to  receive  the  moneys 
the  company  became  liable  to  pay  upon  them. 

But  it  has  been  urged  by  the  learned  counsel  representing  the 
defendants  Brune  and  Harris,  the  latter  of  whom  has  been  appointed 
trustee  in  place  of  the  deceased  assignee  Whitridge,  that  the  insur- 
ance company  was  not  entitled  to  be  protected  against  a  further  pay 


BARRY  v.  BRUNE.  401 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

ment  of  the  same  amount  to  such  trustee,  as  it  has  been  by  the  judg- 
ment entered  in  this  action.  And  reliance  has  been  placed  upon  a 
judgment  recovered  in  the  United  States  Circuit  Court  for  the  dis- 
strict  of  Maryland,  in  support  of  that  position.  That  judgment  was 
recovered  in  favor  of  Horatio  S.  Whitridge,  as  assignee  of  the 
defendant  Brune,  against  The  Mutual  Life  Insurance  Company.  It 
was,  in  form,  an  action  at  law  upon  the  policies  issued  to  the 
defendant  Brune,  to  recover  their  amount  because  of  the  decease  of 
Barry,  whose  life  was  insured  by  them.  And  it  was  commenced 
while  the  present  action  was  pending,  and  after  both  Brune,  and 
"Whitridge  his  assignee,  had  appeared  as  defendants  in  this  suit. 
The  insurance  company,  by  its  plea  in  the  United  States  Circuit 
Court,  denied  that  it  was  indebted  to  the  plaintiff  in  the  action 
there  pending,  or  that  it  had  promised  as  was  alleged,  and  then  set 
forth  the  pendency  of  the  present  action  as  a  defense.  A  replica- 
tion to  the  plea  was  filed,  which  in  no  manner  changed  the  issues 
tendered  by  it.  Upon  those  pleadings  the  action  was  tried,  and  a 
recovery  had  in  favor  of  the  plaintiff  for  the  amount  due  on  botk 
the  policies.  That  was  a  direct  result  of  the  form  of  the  contract 
entered  into  upon  the  forfeiture  of  the  policies  issued  to  the  plaintiff. 
The  simple  pendency  of  this  suit  in  this  State  constituted  no  legal 
obstacle  to  the  maintenance  of  that  action  in  the  State  of  Maryland. 
And  as  the  insurance  company  had  promised  to  pay  the  loss  to  Brune, 
the  assignor  of  the  plaintiff  in  that  action,  and -had  become  indebted 
by  the  decease  of  Barry,  a  liability,  according  to  the  contracts 
entered  into,  was  clearly  made  out.  That  was  all  that  was  in  issue 
in  the  action  in  the  United  States  Circuit  Court ;  and  to  that  extent 
only,  is  the  judgment  recovered  conclusive  as  to  the  obligation  of  the 
company.  Whitridge,  as  the  assignee  of  Brune,  could  very  properly 
maintain  that  action  as  he  did,  for  he  had  the  express  promise  of  the 
company  to  his  assignor  to  predicate  it  upon.  And  that  was  sufficient 
to  entitle  him  to  recover  in  a  court  of  law.  But  whether,  after  a 
recovery,  he  could  appropriate  the  fruits  of  it,  or  whether  by  para- 
mount title  of  the  plaintiff  in  this  suit  he  could  be  deprived  of  them, 
were  matters  in  no  way  involved  in  the  litigation  between  Whitridge, 
as  assignee  of  Brune,  and  the  company.  What  was  in  controversy, 
was  his  right  to  the  insurance  moneys  under  the  terms  of  the  policies. 
So  far  as  the  company  was  concerned,  and  without  a  suDerior  claim- 
HUN— VOL.  VIII.  51 


402  BARRY  w.  BRUNE. 

FIRST  DEPARTMENT,  OCTOBEB  TEKM,  1876. 

ant,  he  was  clearly  entitled  to  an  adjudication  of  those  matters  in  hia 
favor,  and  that  was  all  that  the  judgment  recovered  in  the  United 
States  Circuit  Court  could  or  did  settle,  for  a  judgment  is  only  final 
and  conclusive  on  the  points  actually  in  issue,  and  which  may  be 
litigated  by  the  parties.  (Royce  v.  Burt,  42  Barb.,  655  ;  Burwell 
v.  Knight,  51  id.,  267 ;  Sweet  v.  Tuttle,  14  N.  Y.,  465 ;  Campbell 
v.  Consalus,  25  id.,  613 ;  Angel  v.  Coon,  38  id.,  378.)  As  the 
policies  themselves,  upon  which  the  action  was  prosecuted,  were  in 
equity  affected  by  a  trust  in  Bruue's  hands  for  the  benefit  of  the  plain- 
tiff, so  was  the  judgment  recovered  by  his  assignee,  and  so  would  the 
money  be  if  he  were  permitted  to  receive  it.  The  trust  which 
Attached  itself  to  the  policies  also  impressed  itself  upon  the  judgment 
for  the  recovery  of  the  amount  of  them.  That  necessarily  follows 
from  the  principle  already  mentioned,  and  as  the  existence  of  such 
trust  was  not  involved  in  the  action  in  which  the  judgment  was 
recovered,  and  the  plaintiff  was  in  no  way  a  party  to  it,  that  was  a 
proper  subject  of  inquiry  in  this  case,  notwithstanding  the  existence 
of  that  judgment.  It  was  only  adjudged  in  the  Circuit  Court  tha 
the  plaintiff  in  that  action  could  enforce  the  promises  the  company 
had  made  to  his  assignor.  Whether  he  could  retain  the  money  from 
the  plaintiff  in  this  action  after  he  recovered  it,  was  neither  in  issue 
nor  determined.  That  depended  upon  evidence  and  facts  not  perti- 
nent to  that  controversy,  but  entirely  extraneous  to  it,  and  they 
formed  a  subject-matter  entirely  distinct  and  independent  of  it.  It 
is  by  no  means  an  unusual  thing  for  one  party  to  recover  and  collect 
money  from  another,  which  in  the  end  may  be  found  to  be  the 
equitable  property  of  a  third,  and  wherever  that  may  appear  to  be 
the  case,  equity  always  intervenes  and  determines  who  has  the 
paramount  right  to  receive  and  retain  it.  In  fact  that  is  always  the 
case  as  to  property  held  in  trust  either  by  the  wrongful  act  of  a 
party,  or  upon  a  lawful  and  conventional  trust,  created  by  the 
act  of  one  person  for  the  benefit  of  another.  The  obligations 
are  the  same  in  each  class  of  cases.  The  trustee,  whether 
made  such  by  operation  of  law  or  the  voluntary  act  of  another, 
holds  the  trust  property  not  for  himself,  but  for  the  party  beneficially 
interested  in  it  and  ultimately  entitled  to  receive  it ;  and  the  recov- 
ery of  it  fr  3m  another,  either  by  force  of  a  contract  for  its  payment  or 
restoratio  ,or  by  means  of  the  title  alone,  vests  the  person  charged 


BARRY  v.  BRUNE.  403 


FIEST  DEPARTMENT,  OCTOBER  TERM,  1876. 


with  the  trust  with  no  greater  right  or  interest  as  to  the  ceatui  qut 
trust,  than  he  would  have  if  the  subject-matter  were  never  involved  in 
legal  controversy.  From  the  relation  borne  to  the  property,  what- 
ever the  party  so  recovering  it  may  do,  he  does  not  act  for  him 
«elf,  but  for  the  party  who  has  the  final  right  to  receive  and 
recover  the  property  from  him.  That  was  the  situation  of  Brune 
and  his  assignee  in  the  present  case.  While  they  had  the  nominal 
and  apparent  title  to  the  policies,  the  plaintiff  was  the  beneficial 
and  paramount  owner  of  them.  And  her  title  could  not  be,  and 
was  not,  divested  or  in  any  form  impaired  by  reason  of  the  circum- 
stance that  a  judgment  for  a  recovery  of  the  debt  had  been 
rendered  in  favor  of  one  of  them  upon  contracts  made  with  the 
other,  enforcing  the  simple  obligation  for  the  payment  of  the 
money ;  whether  in  equity  the  plaintiff  or  the  assignee  of  Brune 
should  receive  the  money,  was  another  controversy,  in  no  way 
disposed  of  until  it  was  heard  and  decided  in  the  present  action. 
And  in  this  case  it  was  properly  held  that  she  had  the  paramount 
right,  and  that  the  money  should  be  paid  to  her  as  her  property. 
That  resulted  necessarily  from  the  facts  that  the  original  policies 
were  hers ;  that  she  never  parted  with  her  title  to  them,  and  by 
those  issued  to  the  defendant  Brune  the  same  insurance  was  in 
effect  continued. 

There  was  but  one  insurance  either  in  fact  or  in  law,  and  the 
contest  was  limited  to  the  right  to  its  proceeds.  The  insurance 
company  became  liable  for  only  one  aggregate  sum  of  $25,000, 
and  it  received  the  premium  or  consideration  for  that,  and  for 
nothing  beyond  it.  Whitridge,  as  the  assignee  of  Brune,  who 
received  the  new  policies  in  the  place  of  and  as  substitutes  for  the 
old  ones,  limited  his  claim  to  the  recovery  of  that  money,  and  for 
that  judgment  was  awarded  in  his  favor.  The  plaintiff  in  this 
action  claimed  the  same  fund,  and  her  right  to  it  has  been 
established.  The  payment  or  deposit  already  made  of  it,  pursuant 
to  the  judgment  in  this  case,  will  discharge  the  entire  liability  of 
the  insurance  company,  and  satisfy  the  judgment  recovered  by 
Whitridge  and  now  hold  by  the  defendant  Harris,  who  was 
appointed  as  his  trustee  upon  his  decease.  And  it  was  therefore 
within  the  power  of  this  court  to  enjoin  further  proceedings  after- 
wards for  the  enforcement  of  that  judgment.  Complete  justice 


404  BARRY  v.  BRUNE. 


FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 


could  not  otherwise  be  done  between  the  parties.  Whitridge 
recovered  a  judgment  for  money  which  was  really  the  prop 
erty  of  the  plaintiff  in  this  action.  And  this  court  has  now 
determined  that  instead  of  its  being  paid  to  him,  and  then  by 
him,  as  it  should  be  if  he  received  it,  paid  over  to  the  plaintifl', 
that  it  shall  be  paid  directly  to  her.  And  it  could  not  properly 
do  that,  without  at  the  same  time  protecting  the  company 
against  liability  to  make  another  payment  of  it  to  Harris  us 
the  trustee  of  Brune  and  Whitridge.  The  Code  invested  the 
court  with  the  power  of  pronouncing  just  such  a  judgment  in 
the  case.  It  could  not  otherwise  determine  the  entire  con- 
troversy before  it  or  the  ultimate  rights  of  the  parties  as 
between  themselves,  as  it  has  been  empowered  to  do.  (Code, 
§§  122,  274.)  It  was  also  properly  incidental  to  an  action  in 
equity  prosecuted  for  the  settlement  of  conflicting  claims  to  the 
same  fund  or  property.  Judgment  for  its  payment  to  one  of  the 
parties  required  that  the  .others  should  be  precluded  from  also 
demanding  or  receiving  it ;  and  that  could  only  be  done  in  one  of 
two  ways :  either  by  requiring  the  judgment  recovered  for  the 
debt  to  be  actually  satisfied  and  discharged  of  record,  or  enjoining 
the  party  in  whose  favor  it  stood  from  afterwards  proceeding  with 
its  collection.  The  insurance  company  was  made  a  party  to  the 
action  for  the  purpose  of  concluding  it  by  the  judgment  which 
should  be  rendered  on  the  conflicting  claims  made  to  the  proceeds 
of  the  policies.  And  one  of  the  incidents  in  the  determination  of 
such  a  controversy  is  to  afford  protection  to  the  debtor  on  making 
the  payment  directed  by  the  final*  judgment.  It  is  based  upon  the 
facts  proved,  for  the  purpose  of  showing  to  whom  the  money 
should  be  rightfully  paid  ;  and  for  that  reason,  within  the  rule 
mentioned  in  the  case  of  Kay  v.  Whittaker  (44  N.  Y.,  565,  576). 
Complete  redress  could  be  awarded  in  no  other  way.  As  the  judg- 
ment in  the  other  case  was  not  actually  satisfied  of  record,  its  future 
collection,  on  the  payment  of  the  money  to  the  person  entitled  to 
receive  it,  or  its  deposit  in  court  for  her,  was  lawfully  enjoined. 
(Savage  v.  Allen,  54  N.  Y.,  458;  N.  T.  and  Harlem  R.  R. 
v.  Haws,  56  id.,  175.)  The  case  was  a  special  one,  and  the  con- 
troversy was  properly  terminated  in  that  manner.  There  would 
have  been  no  reason  in  allowing  it  to  remain  open  for  future  litiga- 


PETERS  v.  MAYOR.  405 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

tion  upon  the  same  evidence,  in  the  courts  of  another  State.  But 
as  this  action  was  the  first  and  only  one  commenced  for  the  purpose 
of  settling  the  conflicting  claims  made  to  the  insurance  money,  by 
a  party  who  was  a  citizen  of  this  State,  arid  all  the  parties  having 
any  interest  in  the  controversy  were  brought  before  the  court,  it 
could  do  no  less  than  it  did,  under  the  well  settled  principles  of 
equity  jurisdiction,  which  required  that  the  dispute  should  be  com- 
pletely and  effectually  disposed  of  by  the  judgment  finally  ren- 
dered in  the  case.  (JRathbone  v.  Warren,  10  Johns.,  587 ;  Miller  v. 
McCan,  7  Paige,  451 ;  Elliott  v.  Pell,  1  id.,  263,  268 ;  Jones  v. 
Grant,  10  id.,  348,  350.)  Any  different  disposition  would  have 
invited  further  litigation  between  some  of  the  parties  without 
being  attended  by  any  beneficial  result  not  attainable  in  the  present 
action.  The  judgment  was  right  and  it  should  be  affirmed,  with 
costs  to  the  respondents. 

BEADY,  J.,  concurred.    DAVIS,  P.  J.,  taking  no  part. 
Judgment  affirmed,  with  costs. 


GEORGE  C.  PETERS  AND  OTHEKS,  EXECUTORS,  ETC.,  OF  JOHN 
R.  PETERS,  DECEASED,  APPELLANTS,  v.  THE  MAYOR,  ETC., 
OF  THE  CITY  OF  NEW  YORK,  RESPONDENT. 

Municipal  corporation  —  street  opening  —  neglect  of  owner  to  remove  building  — 
unauthorized  acts  of  officers  in  so  doing  —  liability  of  city  therefor  —  measure  of 
damages. 

The  city  of  New  York  having  instituted  proceedings  to  acquire  title  to  the  lands 
necessary  for  the  widening  of  Church  street,  an  award  was  made  to  the  plain- 
tiffs for  land  taken  from  them  and  for  the  expense  of  removing  the  buildings 
thereon.  Subsequently,  upon  their  failure  to  remove  the  buildings,  the  street 
commissioner,  whose  duty  it  was  to  take  charge  of  the  opening  and  altering  of 
streets  and  avenues,  advertised  them  for  sale  and  paid  over  the  proceeds  to  the 
defendant.  In  an  action  by  the  plaintiffs  to  recover  the  value  of  the  buildings, 
held  (1),  that  the  materials  in  the  buildings  belonged  to  the  plaintiffs,  and  that 
it  was  unlawful  for  the  defendant  to  sell  the  same;  (2),  that  though  the  street 
commissioner  was  not  authorized  to  sell  the  buildings,  yet,  as  he  acted  for  the 
defendant  in  good  faith  and  in  pursuance  of  a  general  authority  possessed  by 
him,  it  was  liable  therefor. 


406  PETERS  v.  MAYOR. 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

The  plaintiffs  should  be  limited  in  their  recovery,  to  the  amount  realized  on  the 
sale  and  actually  paid  over  to  the  defendants,  with  interest,  less  the  amount 
allowed  to  them  for  the  removal  of  the  buildings.  (Per  DAVIS,  P.  J.) 

APPEAL  from  a  judgment  in  favor  of  the  defendants,  entered  on 
the  dismissal  of  the  plaintiffs'  complaint  on  the  trial  at  the  Circuit. 

Timothy  F.  Neville  and  Moody  B.  Smith,  for  the  appellants 
James  M.  /Smith,  for  the  respondent. 

DANIELS,  J. : 

It  seems  to  be  conceded  in  this  case  that  the  defendant  instituted, 
carried  on  and  completed  proceedings  for  widening  Church  street, 
in  the  city  of  New  York  ;  that  a  portion  of  the  land  required  and 
taken  for  that  purpose,  belonged  to  an  estate  of  which  the  plaintiffs 
were  the  executors ;  and  in  the  award  made  they  were  allowed 
the  value  of  the  land,  and  the  expense  of  removing  the  buildings 
from  it,  and  required  to  make  such  removal.  The  award  was  paid, 
but  the  buildings  were  not  removed  by  the  plaintiffs,  nor  by  any 
person  acting  under  their  authority.  After  they  had  neglected,  for 
the  period  of  about  sixteen  months,  to  take  measures  for  the  removal 
of  the  buildings,  the  street  commissioner,  whose  duty  it  was, 
under  the  ordinances  of  the  city  to  open  the  street,  advertised  them 
for  sale  and  sold  them,  and  they  were  afterward  removed  and 
appropriated  to  their  own  use  by  the  purchasers.  The  plaintiffs, 
claiming  such  sale  and  appropriation  to  have  been  unlawful  and 
unauthorized,  brought  this  action  to  recover  the  value  of  such 
materials.  It  appeared  that  all  the  buildings  in  the  way  of  the 
completion  of  the  widening  of  the  street  were  sold  at  the  same 
sale,  and  the  proceeds  received  from  them  were  paid  into  the  treas- 
ury of  the  city.  Upon  this  state  of  facts,  together  with  evidence 
skewing  the  value  of  the  property  claimed,  the  complaint  of  the 
plaintiffs  was  dismissed,  to  which  they,  in  due  form,  excepted. 

By  the  decision  which  was  made  in  the  case  of  Schuchardt  v. 
The  Mayor  (53  N".  Y.,  202),  the  title  of  the  owners  to  the  mate- 
rials in  the  buildings  upon  land  taken  for  widening  this  street,  was 
established.  And  it  was  further  held  that  they  could  recover  for 
a  sale  and  appropriation  of  them,  without  their  authority,  against 
ihe  defendant,  when  that  was  made  by  its  act.  That  was  necee- 


PETERS  v.  MAYOR.  407 


FIRST  DEPARTMENT,  OCTOBER  TERM,  1878. 


sarily  the  result  of  sustaining  the  complaint  in  that  case.  And 
it  restricts  the  present  controversy  to  the  question,  whether  the 
sale  was,  in  this  case,  shown  to  have  been  made  by  the  act  or 
authority  of  the  defendant.  That  was  not  proven  by  direct  evi- 
dence. But  it  did  appear  that  the  city  was  engaged  in  the  promo- 
tion of  the  enterprise  of  widening  this  street,  and  'lie  reuio. ;; 
the  buildings  was  indispensable  to  the  success  of  that  enterprise. 
It  was  made  the  duty  of  the  street  department,  whose  chief  officer 
was  the  street  commissioner,  to  open  streets.  For  the  purpose  of 
opening  this  street  that  officer  advertised,  and  caused  to  be  sold, 
the  buildings  standing  upon  the  land  which  had  been  taken  for 
the  widening  of  the  street,  and  the  city  received  the  proceeds.  It 
was  not  shown  that  it  knew  whence  they  proceeded.  But  that 
sould  reasonably  have  been  inferred  from  the  public  nature  of  the 
enterprise  in  which  it  was  engaged  ;  the  necessity  of  the  removal 
of  the  buildings ;  the  notoriety  of  the  commissioner's  acts  for  the 
promotion  of  that  end,  and  the  nature  of  the  fund  paid  over  to  it. 
There  was  enough  in  the  case  to  render  the  inquiry  a  proper  one 
for  the  jury,  whether  the  city  had  not  confirmed  the  acts  of  its 
officer  by  receiving  and  enjoying  their  fruits  ;  and  if  that  were  the 
-jase  it  was  equivalent  to  a  direct  authority  for  the  performance  of 
such  acts. 

The  decided  probabilities  of  the  transaction  would  appear  to 
lead  to  the  conclusion  that  the  city  desired  to  complete  the  work 
of  widening  the  street,  and  directed  the  street  department  to 
remove  the  buildings  standing  in  the  way,  without  indicating  the 
manner  in  which  that  was  expected  to  be  done.  And  in  the 
exercise  of  that  general  authority,  the  commissioner  having  no 
place  of  storage  or  deposit  for  the  materials,  concluded  that  they 
could  be  most  effectually  removed  by  a  sale,  and  made  that  accord- 
ingly. It  was  one  mode  of  accomplishing  the  result  he  was 
required  to  produce,  and  for  that  reason  not  so  entirely  beyond  the 
limits  of  the  authority  given  to  him,  as  to  preclude  the  defendant 
from  rendering  itself  liable  by  a  ratification,  proceeding  from  the 
acceptance  and  retention  of  the  proceeds  of  the  sale.  (Dillon  on 
Municipal  Corporations  [2d  ed.],  §  385,  and  notes;  Angell  & 
Ames  on  Corps.  [4th  ed.],  §  304 ;  Bennett  v.  Judson,  21  N.  T.T 
238,  239,  240;  Thayer  v.  City  of  Boston,  19  Pick.,  511.)  There 


408  PETERS  v.  MAYOR. 


FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 


can  be  no  doubt  but  the  commissioner  acted  bona  fide  pursuant  to 
a  general  authority  possessed  by  him,  and  supposed  he  did  no  more 
than  to  discharge  the  duty  which  had  been  imposed  upon  him. 
The  act  was  done  for  the  corporation,  in  the  promotion  of  a 
proper  and  lawful  enterprise  prosecuted  by  it,  and  under  its  gen- 
eral authority,  and  that  has  been  held  to  be  sufficient  to  render 
it  liable  for  the  consequences  of  a  deviation  from  the  strict  line  of 
euch  authority.  (Lee  v.  Village  of  Sandy  Hill,  40  N.  Y.,  442.) 
The  act  of  removing  the  buildings  was  a  lawful  and  proper  one,, 
and  if  no  more  than  that  had  been  done  the  defendant  would  not 
have  been  liable.  But  to  secure  that  removal  a  sale  of  their 
materials  was  made,  and  the  purchaser  according  to  its  terms  appro- 
priated them  to  his  own  use.  Those  acts,  while  they  secured  the 
removal  the  commissioner  was  authorized  to  effect,  were  unauthor- 
ized, because  the  materials  belonged  to  the  plaintiffs.  And  for  the 
reasons  already  assigned,  enough  was  shown  to  entitle  them  to 
have  the  questions  submitted  to  the  jury,  on  the  determination  of 
which  the  liability  of  the  defendant  for  such  sale  depended. 

The  judgment  should  be  reversed  and  a  new  trial  ordered,  with 
costs  to  abide  the  event. 

BRADY,  J.,  concurred. 

DAVIS,  P.  J. : 

The  plaintiffs  were  wrong-doers  in  not  removing  the  buildings 
after  receiving  compensation  for  the  land  and  for  the  expense  of 
removal.  The  building  became  a  nuisance,  which  it  was  the  duty 
of  the  proper  city  authorities  to  abate.  The  city  was  not  bound 
to  incumber  the  public  streets  with  the  building  or  its  materials, 
nor  to  furnish  a  place  of  deposit  on  any  of  its  other  property.  It 
had  a  right,  therefore,  under  the  peculiar  circumstances  of  the  case, 
to  tear  down  the  building  and  if  necessary  to  dispose  of  the  mate- 
rials in  any  form  requisite  to  get  them  out  of  the  way  of  the  street 
to  be  opened.  In  getting  the  building  out  of  the  way,  the  com- 
missioner of  public  works  only  did  an  act  which  the  plaintiffs  were 
bound  to  perform,  and  if  the  same  was  done  with  reasonable  care  and 
prudence  he  should  be  regarded  as  acting  with  authority  from  the 
plaintiffs,  who,  from  their  neglect  or  refusal  to  remove  the  building 


BANCKER  v.  MAYOR.  40$ 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

after  compensation  for  so  doing  had  been  paid  to  them,  must  be 
regarded  as  assenting  that  the  authorities  might  treat  and  dispose 
of  the  same  as  a  nuisance. 

If  in  disposing  of  a  public  nuisance  a  sale  of  the  materials  is 
made  so  that  money  therefor  is  realized,  the  proceeds  may  be 
regarded  as  the  property  of  the  owner  of  such  nuisance,  which  may 
be  recovered  after  proper  demand,  and  after  deducting  the  expenses 
incurred  in  the  abatement  of  the  nuisance. 

I  think,  in  this  case,  there  could  be  no  recovery  of  the  city  beyond 
the  amount  realized  on  the  sale  and  actually  paid  into  its  treasury, 
with  interest  after  proper  demand,  subject,  also,  to  a  deduction  of 
the  amount  allowed  and  paid  to  plaintiffs  in  the  award  for  the 
removal  of  the  building. 

In  no  other  way  can  justice  be  done  to  the  city,  when  placed  in 
such  a  position  by  the  wrongful  conduct  of  a  party,  whose  lands 
have  been  taken  for  a  public  street  on  payment  of  just  compensa- 
tion both  for  the  land  and  the  removal  of  buildings. 

I  concur  that  there  should  be  a  new  trial  in  this  case,  but  if  the 
city  be  found  liable,  the  damages  should  be  measured  by  the  rules 
above  suggested. 

Judgment  reversed,  new  trial  ordered,  costs  to  abide  the  event. 


DAYID  0.  BANCKER  AND  MICHAEL  J.  QUIGG,  RESPOND- 
ENTS, v.  THE  MAYOR,  Em,  OF  THE  CITY  OF  NEW 
YORK,  APPELLANTS. 

Certificate  —  when  made  prerequisite  of  payment  —  unreasonable  refusal  to  give  — 
effect  of —  Presumption  —  of  fact,  to  sustain  referee's  report. 

Where  an  act  authorizing  the  construction  of  a  court-house  in  the  city  of  New 
York  provided,  that  payments  therefor  should  be  made  by  the  city  upon  the  pro- 
duction of  vouchers,  approved  by  the  commissioners  by  whom  the  building  was 
to  be  erected,  a  refusal  on  their  part  to  approve  a  hill  on  the  ground  that  they 
have  no  personal  knowledge  of  the  matter  is  unreasonable,  and  relieves  the 
applicant  from  the  necessity  of  complying  with  this  provision  of  the  act. 

When  the  uncontradicted  evidence  establishes  the  existence  of  a  fact,  essential  to 
HUN— VOT,  VIII.  52 


410  BANCKEU  y.  MAYOR. 

FIBST  DEPARTMENT,  OCTOBEK  TEBM,  1870. 

the  plaintiffs  right  to  recover,  it  will  be  presumed,  iii  support  of  a  judgment 
in  his  favor,  that  such  fact  was  found  by  the  referee,  though  not  so  stated  in 
his  report. 

APPEAL  from  a  judgment  iu  favor  of  the  plaintiffs,  entered  upon 
the  report  of  a  referee. 

This  action  was  brought  to  recover  $4,873,  with  interest,  for 
work,  labor  and  services  performed  on,  and  materials  furnished  in 
the  building  of  the  Harlem  court-house.  It  appeared  by  the  evi- 
dence that  the  plaintiffs,  who  were  partners  in  the  carpenter  trade, 
furnished  materials  and  performed  labor  as  alleged  in  the  com- 
plaint, in  pursuance  of  directions  given  by  a  Mr.  Scallon,  who  was 
claimed  by  them  to  be  an  agent  of  the  commissioners  appointed  to 
erect  the  court-house. 

That  the  plaintiffs  prepared  bills  for  the  amount  of  their  claim, 
and  caused  them  to  be  presented  to  the  commissioners  for  their 
approval,  in  pursuance  of  section  3,  chapter  410  of  1870,  author- 
izing the  construction  of  the  court-house,  but  that  the  commission- 
ers refused  to  approve  them,  giving  as  a  reason,  "that  they  had  no 
personal  knowledge  of  the  matter." 

Chas.  P.  Miller,  for  the  appellants. 
Henry  Parsons,  for  the  respondents. 

DANIELS,  J. : 

The  judgment  from  which  the  appeal  has  been  taken,  was  recov- 
ered for  the  value  of  labor  and  materials  performed  and  supplied 
by  the  plaintiffs  in  the  erection  of  the  Harlem  court-house,  in  the 
ninth  judicial  district  of  the  city  of  New  York.  The  controversy 
was  limited  to  the  point  of  the  liability  of  the  defendant  for  the  debt, 
the  amount  of  which  was  practically  undisputed.  The  materials 
were  furnished  and  the  work  performed  under  the  immediate  employ- 
ment of  Mr.  Scallon,  who  represented  himself  as  the  superintend- 
ent under  the  commissioners  designated  in  the  act  for  the  erection 
of  the  court-house.  -His  declarations  of  the  fact  that  he  was  super- 
intendent were  received  without  objection,  during  the  trial,  as  evi- 
dence in  the  case.  And  it  appeared  that  he  presented  a  bill  to  the 
defendant,  which  contained  a  charge  for  his  services  in  that  capacity 
during  the  year  1870,  in  which  the  plaintiffs  commenced  their  work, 


BANCKER  v.  MAYOR.  411 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

and  that  it  was  allowed  and  paid  by  the  authorities  of  the  city. 
From  these  facts  the  referee  was  warranted  in  finding  that  Scallon 
was,  as  he  claimed  he  was,  the  superintendent  in  charge  of  the  erec- 
tion of  the  building. 

The  commissioners  were  empowered  by  the  act  designating  them, 
to  employ  him  in  that  capacity  ;  for  it  was  provided  in  it  that  they 
might  employ  the  necessary  assistants  required  in  the  performance 
of  their  duties,  and  that  they  should  be  paid  by  the  comptroller  of 
the  city,  upon  vouchers  approved  by  the  commissioners.  (Laws 
of  1870,  chap.  410,  §  3  )  Under  that  general  authority  the  plain- 
tiffs were  also  employed  and  performed  the  services  and  supplied 
the  materials  for  which  payment  was  claimed  by  them,  and  it  was 
clearly  broad  enough  for  that  purpose.  The  commissioners  were 
empowered  to  locate  and  erect  the  court-house  and  for  that  pur- 
pose to  employ  the  necessary  assistants,  and  as  such  the  plaintiffs 
seem  to  have  been  engaged. 

There  is  nothing  in  the  act  by  which  the  commissioners  them- 
selves were  rendered  liable  for  the  price,  etc.,  or  value  of  the 
materials  supplied  and  work  performed  in  erecting  the  building ; 
neither  have  they  been  provided  with  any  fund  for  the  payment  of 
the  expenses  to  be  incurred.  It  could  not  have  been  designed, 
therefore,  that  they  should  become  personally  liable  for  such  pay- 
ment. The  act  provided  that  the  land  purchased  and  the  building 
erected  under  the  superintendence  of  the  commissioners  should  be 
the  property  of  the  defendant  (Laws  of  1870,  chap.  410,  §  1), 
and  that  payment  of  the  necessary  assistants  employed  by  them 
should  be  made  by  the  comptroller  of  the  city  in  the  usual  method 
for  making  payments  for  city  purposes,  upon  vouchers  approved 
by  at  least  a  majority  of  the  commissioners,  and  that  the  board  of 
supervisors  should  raise  the  necessary  funds  for  that  purpose  by  a 
tax  upon  the  real  and  personal  estate  within  the  city.  (Id.,  §  3.) 
From  these  provisions  it  is  very  clear  that  the  work  was  to  be 
done  by  the  commissioners  for  the  defendant  and  at  its  expense. 
They  were  made  its  agents,  and  it  became  liable  for  their  lawful 
acts,  and  it  was  properly  held  to  be  so  by  the  referee.  The  case  in 
this  respect  is  entirely  different  from  those  relied  upon  in  support 
of  the  appeal,  and  in  which  no  such  agency  and  obligation  to  make 
payment  appeared  to  have  beet  provided  for. 


412  BANCKER  y.  MAYOR. 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

It  was  not  objected  that  the  tax  had  not  been  levied  and  col- 
lected, as  directed  by  the  act  for  the  payment  of  the  expenses 
incurred,  but  it  was  claimed  that  no  recovery  could  be  had,  because 
the  commissioners  had  approved  of  no  vouchers  entitling  the  plain- 
tiffs to  payment.  To  meet  this  delect  in  the  case,  it  was  shown 
that  an  application  was  made  to  them  for  the  approval  of  the  bills, 
which  they  refused,  for  the  assigned  reason  that  they  had  no  per- 
sonal knowledge  on  the  subject.  That  was  an  unreasonable  refusal. 
If  they  had  no  personal  knowledge,  it  was  their  duty  to  have  insti- 
tuted such  an  investigation  as  would  have  enabled  them  to  have 
discharged  the  duty  which  the  statute  had  imposed  upon  them.  It 
was  the  intent  of  the  act,  that  they  should  determine  the  justice  of 
the  demand  made  before  payment  could  be  legally  required,  and 
it  was  their  duty  to  acquire  the  knowledge  requisite  for  the  intelli- 
gent performance  of  that  duty.  By  refusing  to  do  that  they  put  it 
out  of  the  plaintiffs'  power  to  comply  with  this  provision  of  the 
act,  and  entitled  them  to  payment  of  what  was  justly  owing  with- 
out the  vouchers  unreasonably  denied  them.  This  was  held  in 
substance  by  the  Court  of  Appeals,  in  the  decision  of  the  case  of 
The  Bowery  National  Bank  v.  The  Mayor,  etc.  (not  yet  reported). 

The  referee  must  have  adopted  this  view  of  the  evidence, 
although  he  has  not  so  stated  in  his  report.  But  as  the  fact 
appeared  by  the  evidence,  which  was  not  contradicted,  and  it  was 
essential  to  the  right  of  the  plaintiffs  to  recover,  it  is  to  be  pre- 
sumed, in  support  of  the  judgment,  that  it  was  found  though  not 
stated  by  the  referee.  (Cooper  v.  Bean,  5  Lansing,  319 ;  Grant  v. 
Morse,  22  N.  Y.,  323 ;  Chubluck  v.  Vemam,  42  id.,  432.) 

The  judgment  should  be  affirmed. 

BEADY,  J.,  concurred. 

DAVIS,  P.  J.  (dissenting): 

The  city  was  not  bound,  nor  was  the  comptroller  authorized  to 
pay  until  the  presentation  of  the  vouchers  required  by  the  act. 
The  approval  of  the  commissioners  was  an  essential  part  of  such 
•vouchers,  made  so  by  the  act  itself.  The  respondents  were  bound 
to  present  to  the  comptroller  such  approval,  or  to  satisfy  him  that 
it  was  improperly  or  unreasonably  withheld.  Nothing  of  that 


PEYSER  v.  MAYOR.  413 

FIBST  DEPARTMENT,  OCTOBER  TERM,  1876. 

kind  was  attempted  to  be  shown.  If  the  city  authorities,  on  such 
facts  being  shown  to  them,  had  refused  to  allow  and  pay  the 
demand,  notwithstanding  the  unreasonable  and  illegal  refusal  of 
the  commissioners  to  approve  the  account,  then  the  plaintiffs  might, 
upon  proper  proof,  maintain  their  action.  The  referee  has  not, 
however,  thought  the  question  whether  or  not  the  commissioners 
unreasonably  withheld  their  approval,  one  of  sufficient  importance 
to  be  passed  upon  by  him.  To  me  it  seems  important  that  he 
should  not  only  have  found  an  unreasonable  refusal,  but  also  that 
the  fact  that  the  vouchers  had  been'presented  to  the  commissioners 
and  approval  refused,  on  improper  grounds,  was  made  known  to 
the  city  authorities  when  payment  was  demanded  or  before  suit 
brought. 
I  think  there  should  be  a  new  trial,  with  costs  to  abide  event 

Judgment  affirmed. 


SIEGMUND  M.  PEYSER,  APPELLANT,  v.  THE  MAYOR,  ETC., 
OF  THE  CITY  OF  NEW  YORK,  RESPONDENTS. 

Assessment — payment  of,  under  protest — Voluntary  payment — right   to  recover 

amount  paid. 

The  plaintiff  received  a  notice  from  the  collector  of  the  city  of  New  York,  stating 
that  an  assessment  had  been  made  on  a  lot  owned  by  him,  payment  of  which 
was  expected  to  be  made  on  or  before  July  twenty-seventh,  and  that  unless  paid 
before  that  day  interest  would  be  charged  at  the  rate  of  seven  per  cent  from 
the  date  of  confirmation.  Plaintiff  saw  the  collector,  told  him  the  matter  was 
in  litigation  and  that  if  he  paid,  it  would  be  under  protest;  the  collector  said, 
"  you  can  do  as  you  like,"  whereupon  plaintiff  paid  the  amount.  Subsequently, 
upon  a  petition  filed  by  the  plaintiff  and  others  the  assessment  was  vacated. 
In  an  action  brought  by  him  to  recover  back  the  amount  so  paid,  held,  that 
as  the  payment  was  made  voluntarily  and  with  full  knowledge  of  all  the 
facts,  the  action  could  not  be  maintained.  (BRADY,  J.,  dissenting.) 

APPEAL  from  a  judgment  in  favor  of  the  defendants,  entered  upon 
an  order  dismissing  the  complaint  herein. 

The  action  was  brought  to  recover  the  amount  of  an  assessment 
paid  to  the  defendant. 


414  PEYSER  u.  MAYOR. 

FIBST  DEPARTMENT,  OCTOBEK  TERM,  1876. 

It  appears  that  in  the  latter  part  of  July,  1869,  the  plaintifl 
received  a  notice  from  the  bureau  of  collection  of  assessments  of 
the  city  of  New  York,  stating  that  "  an  assessment  has  been  made 
on  your  property  *  *  *  which  was  confirmed  on  the  3d  of 
March,  1869,  and  that  payment  of  the  said  assessment  is  expected 
to  be  made  on  or  before  the  27th  day  of  July,  1869,  and  unless 
paid  on  or  before  said  day,  interest  will  be  charged  at  the  rate  of 
seven  per  cent  from  the  date  of  confirmation.  *  *  * "  In 
pursuance  of  the  notice  the  plaintiff  went  to  the  office  and  told  the 
collector  that  the  matter  was  in  litigation  and  that  if  he  paid,  it 
would  be  under  protest,  the  collector  said,  f'y>-u  can  do  as  you 
like,"  and  plaintiff  then  paid  the  amount.  TTie  assessment  having 
been  subsequently  vacated  upon  the  application  of  plaintiff  and 
others,  this  action  was  brought  to  recover  back  the  amount  so  paid. 

A.,  ft.  Dyett,  for  the  appellant.  The  assessment  had  been  con- 
firmed by  this  court,  and  the  proceedings  of  the  commissioners,  thus 
confirmed,  were  judicial  and  in  every  respect  equivalent  to  a  judg- 
ment against  the  plaintiff  for  the  amount  of  the  assessment.  (Bank 
of  Commonwealth  v.  The  Mayor,  etc.,  43  N.  Y.,  184,  at  pages 
188,  189,  per  GKOVER,  J. ;  Swift  v.  Poughkeepsie,  37  id.,  511.) 
The  plaintiff's  sole  remedy  was  by  petition  to  vacate,  and  he 
could  not  obtain  any  injunction,  order,  or  process,  staying  the 
enforcement  of  the  assessment  ad  interim,  and  was,  therefore,  com- 
pelled to  pay  the  assessment.  (Bank  of  Commonwealth  v.  The 
Mayor,  etc.,  43  id.,  184-189 ;  Crook  v.  Andrews,  40  id.,  547,  at 
pp.  548,  549 ;  Wilson  v.  The  Mayor,  etc.,  4  E.  D.  Smith,  675,  677, 
702,  703 ;  Swift  v.  Poughkeepsie,  37  id.,  511.)  It  was  not  neces- 
sary that  he  should  wait  for  the  issuing  of  any  warrant  to  collect 
the  assessment,  or  a  sale  of  his  property.  (Bank  of  Commonwealth 
v.  The  Mayor,  etc.,  supra  ;  Sturgis  v.  Allis,  10  Wend.,  355 ;  Meagher 
v.  Kellog,  24  id.,  32 ;  Garr  v.  Martin,  20  K  Y.,  306.)  It  was 
enough  that  payment  was  demanded,  though  even  that  was  not 
necessary.  (Lott  v  Sweezy,  29  Barb.,  92,  93,  and  cases  cited.) 

D.  J.  Dean,  for  the  respondents.  Where  there  is  no  fraud  or 
mistake  in  matter  of  fact,  if  the  law  was  mistaken,  the  rule  applies 
that  ignorantia  juris  non  excusat.  (Mowatt  v.  Wright,  1  Wend., 
355 ;  JSilbie  v.  Lumlie,  2  East,  470  ;  Brisbane  v.  Dacres,  5  Taunt., 


PEYSER  y.  MAYOR.  415 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

155;  Bulkeley  v.  Stewart,  1  Day,  123.)  Where  money  is  paid 
with  a  full  knowledge  of  the  facts  and  circumstances  upon  which 
it  is  demanded,  or  with  the  means  of  such  knowledge,  it  caunct  be 
recovered  back  upon  the  ground  that  the  party  supposed  he  was 
bound  in  law  to  pay  it,  when  in  truth  he  was  not.  (Clarke  v. 
Dutcher,  9  Cow.,  674;  Lowery  v.  Bordieu,  Dougl.,  470;  Knibbs 
v.  Hall,  1  Esp.  K  P.  Gas.,  83 ;  Brown  v.  McKinnally,  id.,  279 ; 
Marryatt  v.  Hampton,  2  id.,  546;  Stevens  v.  Lynch,  12  East, 
38.)  Where  a  void  assessment  has  been  paid  voluntarily,  an  action 
to  recover  the  same  cannot  be  maintained.  (Fleetwood  v.  The 
Mayor,  2  Sandf.,  475  ;  Forrest  v.  The  Mayor,  13  Abb.  Pr.,  350 ; 
Trinity  Church  v.  The  Mayor,  10  How.  Pr.,  138 ;  Supervisors 
of  Onondaga  v.  Briggs,  2  Denio,  26 ;  Wyman  v.  Farnsworth, 
3  Barb.,  369  ;  Mutual  Life  Ins.  Co.  v.  Wager,  27  id.,  354 ;  Sand- 
ford  v.  The  Mayor,  33  id.,  147 ;  Commercial  Bank  of  Rochester 
v.  The  City  of  Rochester,  42  id.,  488 ;  N.  Y.  and  Harlem  R.  R. 
Co.  v.  Marsh,  2  Kern.,  308  ;  Swift  v.  City  of  Poughkeepsie,  32 
N.  Y.,  511.) 

DANIELS,  J. : 

The  first  conclusion  adopted  in  this  case  was,  that  Mr.  Justice 
BBADT  was  right  in  his  views  of  it,  and  that  the  plaintiff  should 
have  been  allowed  to  recover.  But  that  is  believed  to  be  unsound, 
for  the  reason  that  the  money  was  paid  for  the  purpose  of  discharg- 
ing the  assessment,  without  any  mistake  concerning  the  facts  on 
which  it  depended  for  its  validity.  The  plaintiff  was  subjected  to 
no  compulsion  requiring  the  payment  to  be  made  by  him,  but  it 
was  made  voluntarily.  And  when  that  appears  to  be  the  case,  and 
the  payment  was  not  induced  by  some  mistake  of  fact,  it  cannot 
afterward  be  recovered  back.  (Fleetwood  v.  Mayor,  etc.,  2  Saudi'., 
475  ;  Wyman  v.  Famsworth,  3  Barb.,  369  ;  Sandf ord  v.  Mayor, 
33  id.,  147 ;  Commercial  Bank  of  Rochester  v.  City  of  Rochester, 
42  id.,  488  ;  Forbes  v.  Appleton,  5  Gush.,  117.)  The  rule  upon  this 
subject  has  been  recently  stated  in  terms  specially  applicable  to  a 
case  like  the  present  one,  in  the  following  words:  "If  he  volun- 
tarily yielded  to  the  claim,  and  there  was  no  duress  of  person  or 
gov»de,  or  fraud  on  the  part  of  the  creditor,  the  payment  conclude? 
him,  and  he  could  not  avoid  the  forr*>  or  effor*  -~-f  +h?  *c*  ^  r««v 


416  PEYSER  v.  MAYOR. 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

incut  as  an  admission,  or  reserve  the  right  to  draw  the  matter  into 
controversy  thereafter  by  paying  under  protest.  The  act  of 
payment  was  voluntary,  and  if  he  intended  to  litigate  the  right, 
lie  was  bound  at  the  time,  to  take  his  position  and  resist  tin 
lemand  made  upon  him."  (Flower  v.  Lance,  59  N.  Y.,  603. 
•JlO;  Duncan  v.  Bellin,  60  id.,  151.)  The  present  case  differs 
from  that  of  The  Bank  of  Commonwealth  v.  Mayor  (43  N. 
Y.,  184),  in  the  circumstance  that  while  the  proceedings  there 
were  pending  upon  certiorari,  a  warrant  was  issued  for  the  col- 
lection of  the  tax,  and  the  defendant  is  stated  to  have  collected 
it  by  its  officers  by  menace  and  compulsion.  And  also  from  Preston 
v.  Boston  (12  Pick.,  7),  where  it  was  paid  to  avoid  a  warrant  which 
was  to  be  issued  for  its  collection  by  a  certain  specified  day.  No 
authority  has  gone  further  than  that  case  in  the  way  of  maintain- 
ing such  an  action  ;  and  the  present  one  falls  very  far  short  of  it, 
so  far  as  the  feature  of  compulsion  is  concerned.  The  evidence 
showed  that  notice  alone  was  sent  to  the  plaintiff  that  the  assess- 
ment had  been  made ;  that  payment  was  expected  before  the  27th 
day  of  July,  1869,  and  if  not  paid  on  or  before  that  day,  interest 
at  the  rate  of  seven  per  cent  would  be  charged  upon  it  from  the 
date  of  its  confirmation.  Upon  that  the  plaintiff  paid  it  without 
even  a  menace  of  process  or  the  seizure  of  his  property,  insisting, 
at  the  time,  that  the  proceedings  had  been  irregularly  carried  on, 
and  that  others  were  pending  or  about  to  be  taken  to  set  the  assess- 
ment aside.  And  in  reply  he  was  informed  by  the  officer  receiv- 
ing payment  that  he  could  pay  or  not,  just  as  he  chose.  No 
authority  has  yet  proceeded  so  far  as  to  sanction  the  right  to  recover 
hack  money  paid  under  such  circumstances,  even  after  the  assess- 
ment itself  has  been  set  aside,  as  this  one  was  afterward  on  the 
plaintiff's  application.  The  claim  has  no  equities  in  its  favor  which 
should  induce  or  justify  such  an  extension  of  the  existing  rule  on 
this  subject,  as  would  warrant  the  courts  in  sustaining  it.  The 
plaintiff's  property  was  improved  and  advanced  in  value  by  the 
pavement,  for  the  expense  of  which  the  assessment  was  made  ; 
and  that  benefit  he  will  retain,  without  compensation  for  it,  if  the 
payment  made  for  it  should  be  recovered  back,  unless  a  re-assess 
ment  should  be  made  for  it,  as  in  that  case  it  ought  to  be  under  th» 
power  conferred  by  chapter  338  of  the  Laws  of  1858,  section  5. 


PEYSER  v.  MAYOR.  417 

FIKST  DEPARTMENT,  OCTOBER  TERM,  1876. 

The  defect  for  which  the  proceedings  were  set  aside,  did  not  con 
eist  in  any  omission  to  perform  the  work  for  which  the  assessment 
was  required  to  be  paid,  but  it  was  alleged  to  be  an  irregularity 
arising  out  of  the  inclusion  of  the  cost  of  work  done  that  was  not 
authorized  by  the  order  in  pursuance  of  which  the  assessment  was 
laid.  It  is  to  be  presumed,  from  the  evidence,  that  the  plaintiff's 
property  received  in  its  improvement  a  reasonable  equivalent  for 
the  amount  paid  by  him ;  and  that  no  real  injustice  will  be  sus- 
tained by  him  through  the  failure  of  his  action  to  recover  back 
the  money  he  has  paid  for  it. 

The  judgment  in  the  case  should  be  affirmed. 

DAVIS,  P.  J.,  concurred. 

BEADY,  J.  (dissenting) : 

The  plaintiff  paid  an  assessment  imposed  upon  his  land  for  a  locai 
improvement.  Subsequently,  on  his  application,  the  assessment 
was  declared  to  be  void,  and  it  was  vacated.  These  facts  appear- 
ing the  complaint  was  dismissed  upon  the  ground  that  having 
voluntarily  paid  the  assessment  without  disputing  its  validity,  he 
could  not  recover.  The  decision  thus  made  was  erroneous.  It 
cannot  be  denied  that  there  are  conflicting  views  expressed  upon 
this  subject  in  the  cases  in  which  the  question  has  been  directly 
or  incidentally  discussed,  but  the  later  cases  warrant  the  conclusion 
that  such  a  claim  may  be  recovered  back.  (See  Sank  of  the  Com- 
monwealth v.  The  Mayor  ^  43  N.  Y.,  184 ;  Chapman  v.  City  of 
Brooklyn,  40  id.,  372.)  The  doctrine  which  has  been  declared 
and  upheld  in  reference  to  voluntary  payments  may  still  be  main- 
tained upon  the  principle  of  stare  decisis,  but  it  cannot  stand  the 
test  of  natural  justice  and  equity,  and  the  greater  the  inroads  made 
upon  it  the  better.  The  plaintiff  in  this  case  was  entirely  justified 
in  assuming  that  the  assessment  was  duly  imposed,  that  is,  was  a 
burden  upon  his  land  and  in  paying  it  on  that  assumption.  He 
was  equally  justified  when  he  ascertained  his  error  in  that  respect 
to  seek  to  have  it  set  aside,  and  when  it  was  declared  to  be  void, 
the  defendants  were  bound  in  honesty  to  refund  his  money.  It  is 
certain  that  they  were  not  entitled  to  it,  and  that  fact  should  deter- 
mine the  duty  of  the  defendants  at  once.  I  think  the  judgment 
HUN— VOL.  VIII.  53 


418  POST  v.  WEIL. 


FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 


should  be  reversed  and  a  new  trial  ordered  with  costs  to  abide  the 
event.  We  cannot  say  that  the  defendants  may  not  affect  the  right 
of  the  plaintiff  to  recover  by  facts  to  be  shown  by  them  in  connec- 
tion with,  or  in  relation  to  the  claim  made  herein 

Judgment  affirmed. 


WINIFRED  POST  AND  OTHEBS,  RESPONDENTS,  v.  MAX  WEIL, 

APPELLANT. 

Title  —  condition  subsequent  —  Stranger  to  title. 

Hogan  contracted  to  sell  certain  land  to  Mark  upon  condition,  that  no  part  thereof 
or  buildings  thereon  "  should  ever  be  used  or  occupied  as  a  tavern."  Subse- 
quently he  conveyed  the  same  land  to  trustees,  subject  to  the  said  agreement. 
Thereafter  he  and  the  trustees  conveyed  the  land  to  Mark  by  a  tripartite  deed, 
(reciting  the  agreement  and  subsequent  conveyance  to  the  trustees),  "  subject  to 
and  upon  the  condition  hereinbefore  expressed,  unto  the  said  Mark,  his  heirs 
and  assigns."  The  deed  contained  a  covenant  by  Hogan  and  the  trustees  that 
some  or  one  of  them  were  or  was  lawfully  seized,  etc.,  and  full  covenant  of 
warranty  by  Hogan.  Subsequently  the  trustees  reconveyed  to  Hogan  all  the 
property  undisposed  of  by  them.  Held  (1),  that  the  condition  was  reserved  to 
Hogan  and  not  to  the  trustees;  (2),  that  he  was  not  a  stranger  to  the  title, 
and  that  the  reservation  to  him  was  valid;  (3),  that  the  existence  of  the  con- 
dition was  such  a  defect  as  justified  a  purchaser  in  refusing  to  accept  the  title, 

APPEAL  from  a  judgment  in  favor  of  the  plaintiff,  entered  upon 
the  trial  of  this  action  by  the  court  without  a  jury. 

James  C.  Carter,  for  the  appellant. 
Wm.  M.  Evarts,  for  the  respondent. 

BRADY,  J. : 

This  is  an  appeal  from  a  judgment  decreeing  a  specific  perform- 
ance by  the  defendants  of  an  agreement  to  purchase  lands.  At  an 
auction  sale  of  real  estate  belonging  to  the  plaintiffs,  on  the  1st  of 
April,  1873,  the  defendant  made  a  large  purchase.  He  paid  ten 
per  cent  of  the  purchase  money,  and  the  auctioneer's  fee ;  and  was 
to  pay  the  residue  on  the  fifteenth  of  May  following.  By  the  terms 
of  the  sale,  purchasers  were  to  have  a  good  title  in  fee  simple,  with 


POST  v.  WEIL.  419 


FIBST  DEPARTMENT,  OCTOBER  TERM,  1876. 


certain  exceptions,  not  material  to  be  stated.  An  examination  of 
the  title,  by  the  attorneys  for  the  purchaser,  disclosed  the  fact  that, 
on  the  21st  day  of  January,  1811,  one  Michael  Hogan,  then  owner 
of  the  property  and  from  whom  the  plaintiffs,  through  divers  mesne 
conveyances,  derived  their  title,  agreed  in  writing  to  sell  a  tract  of 
land  of  which  the  premises  purchased  were  a  part,  to  one  Jacob 
Mark,  for  the  sum  of  $16,000,  upon  the  special  condition  that  no 
part  of  the  land  or  buildings  thereon  "should  ever  be  used  or 
occupied  as  a  tavern"  Four  days  afterwards,  and  before  perform- 
ing his  agreement  aforesaid,  Hogan  conveyed  the  same  tract  which 
he  had  agreed  to  convey  to  Mark,  unto  Robert  Lenox,  Jacob  Stout 
and  John  Wells,  "  subject  to  the  aforesaid  contract  or  agreement," 
and  upon  certain  trusts  in  the  said  indenture  expressed.  Neither 
the  agreement  to  sell  to  Mark,  nor  the  trust  indenture  aforesaid 
are,  so  far  as  is  known,  now  in  existence ;  nor  is  any  thing  known 
of  their  contents,  except  what  is  recited  in  the  deed  next  to  be 
mentioned.  On  the  29th  day  of  May,  1811,  a  deed  was  executed 
between  Hogan  and  wife,  parties  of  the  first  part,  Lenox,  Stout 
and  Wells,  parties  of  the  second  part,  and  Mark  of  the  third  part, 
reciting  that  Hogan  "  did,  in  and  by  a  certain  agreement  in  writ- 
ing, bearing  date  on  the  twenty-first  day  of  January,  one  thousand 
eight  hundred  and  eleven,  agree  to  sell  to  the  said  Jacob  Mark, 
the  party  of  the  third  part,  the  tract,  piece  or  parcel  of  land  here- 
inafter mentioned  and  described,  with  the  house,  outhouses  and 
buildings  thereon,  for  the  sum  of  sixteen  thousand  dollars,  upon 
the  special  condition  that  no  part  of  the  land  or  buildings  thereon 
should  ever  be  used  or  occupied  as  a  tavern."  The  foregoing 
extract  is  all  that  is  known  of  the  agreement.  The  deed  last  men- 
tioned continues  with  the  following  recital :  "  And,  whereas,  the 
eaid  Michael  Hogan,  and  Frances  his  wife,  did,  in  and  by  a  certain 
indenture,  bearing  date  on  the  twenty-fifth  day  of  January,  in  the 
year  of  our  Lord,  one  thousand  eight  hundred  and  eleven,  made 
between  them,  the  said  Michael  Hogan  and  Frances  his  wife,  of 
the  first  part,  and  the  aforesaid  Robert  Lenox,  Jacob  Stout  and 
John  Wells,  of  the  second  part,  grant,  bargain,  sell,  alien,  release, 
convey  and  confirm  unto  them,  the  said  Robert  Lenox.  Jacob 
Stout  and  John  Wells,  the  survivors  and  survivor  of  them,  and 
the  heirs  and  assigns  of  such  survivor,  the  premises  aforesaid,  and 


420  POST  v.  WEIL. 


FERST  DEPARTMENT,  OCTOBER  TERM,  1876. 


subject  to  the  aforesaid  contract  or  agreement,  upon  certain  truste 
in  the  said  indenture  expressed  ;  so  nevertheless,  that  the  pur- 
chasers of  the  premises  be  not  answerable  for,  nor  in  any  wise 
bound  to  see  to  the  application  of  the  purchase  money,  as  by  the 
said  indenture,  reference  being  had  thereunto,  may  more  fully 
appear."  This  last  recital  contains  the  only  information  of  the 
existence  or  contents  of  the  trust  conveyance  therein  mentioned. 
The  deed  then  proceeds  to  convey  by  apt  words,  the  tract  of  land 
from  Michael  Hogan  and  wife,  to  Jacob  Mark,  for  the  expressed 
consideration  of  one  dollar,  reserving  a  condition  in  these  words  : 
"  Provided  always,  and  these  premises  are  upon  this  express  con- 
dition, that  the  aforesaid  premises  shall  not,  nor  shall  any  part 
thereof,  or  any  building  or  buildings  thereon  erected,  or  to  be 
erected,  be  at  any  time  hereafter  used  or  occupied  as  a  tavern  or 
public  house  of  any  kind"  The  deed  then  further  proceeds  to 
convey  the  same  tract  of  land  from  Lenox,  Stout  and  Wells  to  the 
same  Jacob  Mark,  for  the  expressed  consideration  of  sixteen 
thousand  dollars,  "  subject  to  and  upon  the  condition  hereinbefore 
expressed,  unto  the  said  Jacob  Mark,  his  heirs  and  assigns,"  and 
contains,  among  other  covenants,  one  on  the  part  of  Hogan,  "  that 
they,  the  said  Michael  Hogan,  and  Frances  his  wife,  the  said 
parties  of  the  ji/rst  part,  or  they,  the  said  Robert  Lenox,  Jacob 
Stout  and  John  Wells,  the  parties  of  the  second  part,  some  or  one 
of  them  is,  or  are,  lawfully  seized  of  a  good,  sure,  and  undefeasible 
estate  of  inheritance,"  etc.,  and  also  a  full  covenant  of  warranty  of 
Michael  Hogan.  It  further  appeared,  that  on  the  21st  of  July, 
1819,  Lenox,  Stout  and  Wells  executed  to  Hogan  an  instrument 
reconveying  whatever  property  conveyed  to  them  by  Hogan  in 
trust,  had  not  been  sold  or  disposed  of. 

The  plaintiff's  title  was  derived  through  this  deed.     Some  evi- 
dence was  offered  and  received,  subject  to  exception,  for  the  pur- 
pose of  showing  that  the  condition  reserved  by  this  deed  had  been 
extinguished  by  a  release ;  but  the  learned  judge  after  argument, 
held  it  to  be  wholly  incompetent,  and  refused  to  find  any  such  release 
The  learned  judge  held  that  the  condition  was  a  condition  subse 
quent,  and  unless  in  some  manner  extinguished,  was  a   blemish 
upon  the  title,  which  would  justify  the  purchasers  in  refusing  to 
accept  it.     He  held,  however,  that  treating  the  condition  as  reserved 


POST  v.  WEIL.  421 


FIKST  DEPARTMENT,  OCTOBER  TERM,  1876. 


to  Hogan,  the  reservation  was  void,  on  the  ground  that  he  was  a 
stranger  to  the  estate  at  the  time  of  the  execution  of  the  deed ;  and 
treating  it  as  reserved  to  Lenox,  Stout  and  Wells,  it  was  extin- 
guished by  the  reconveyance  of  July  21st,  1819.  That  conse- 
quently, quacumque  via,  the  condition  no  longer  existed. 

He  therefore  held  the  plaintiffs  entitled  to  a  specific  perfor- 
mance, and  judgment  to  that  effect  having  been  entered,  this 
appeal  was  taken  therefrom  to  £he  General  Term.  This  statement 
of  the  facts  established  by  the  evidence,  prepared  by  the  appel- 
lant's counsel,  is  adopted  as  a  correct  exposition  of  the  incidents  and 
results  of  the  trial,  but  the  question  which  impresses  itself  in  limine 
upon  a  clear  comprehension  of  them  and  the  evidence  given  is, 
whether  a  release  of  the  condition  was  in  fact  executed,  and  it  is  a 
very  important  one.  The  plaintiffs  have  however  taken  no  excep- 
tion to  the  finding  of  the  learned  justice  against  them  on  that  sub- 
ject and  his  conclusion  is  binding.  Whether  there  was  one  or  not 
is  discussed  it  is  true  upon  the  briefs  submitted,  but  the  question  is 
not  saved  for  review  by  exception,  and  it  must  be  assumed  that, 
the  plaintiffs  relied  upon  the  other  conclusions  of  which  the  judg- 
ment was  predicated.  In  presenting  the  questions  apparently 
involved,  the  counsel  for  the  respective  parties  have  not  only  dis- 
tinguished themselves  by  exhaustive  argument,  but  have  placed 
before  us  ample  and  able  briefs.  Their  researches  have  riot  been 
confined  to  the  realm  of  conditions  alone.  Every  thing  bearing 
upon  the  subject  directly  and  indirectly  has  been  developed  and 
discussed,  and  the  court  has  been  put  in  possession  of  all  the  learn- 
ing necessary  to  facilitate  the  determination  of  the  issue  between 
them.  If  any  criticism  be  appropriate  it  is  that  they  have  done 
too  much,  but  careful  and  astute  counsel  are  always  comprehen- 
sive and  thorough,  when  important  rights  and  intricate  questions 
are  involved. 

The  subject  to  be  considered  will,  nevertheless,  be  briefly  dis- 
cussed. The  views  entertained  about  it  can  be  stated  with  little 
elaboration.  It  must  be  said,  at  the  start,  that  the  condition 
imposed  upon  Marks  was,  in  all  respects,  perfect  to  accomplish  the 
object  in  view.  It  was  provided  for  and  assented  to  by  him  when 
the  contract  of  sale  was  executed,  and  again  when  he  received  from 
Hogan  and  his  trustees  the  deed  conveying  the  land  purchased 


422  POST  v.  WEIL. 


FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 


We  are  not  advised,  because  the  deed  to  them  was  not  attainable, 
what  the  trust  was  which  Hogan  conferred  upon  his  trustees,  but 
that  they  fully  performed  it  is  evident  from  the  subsequent  convey 
ance  by  them  to  him.  The  condition  was  perfect  in  itself,  and  it 
was  annexed  to  the  transferred  estate  in  form  and  substance,  so  as 
t-.»  burden  it  with  the  consequences  of  its  violation.  It  is  not 
necessary  to  discuss  or  explain  the  origin,  force  or  effect  of  condi- 
tions, or  the  tendency  of  courts  to  prevent  their  operation  upon 
slight  grounds.  We  know  that  forfeitures  are  not  in  high  repute, 
and  we  cannot  feel  that  they  should  be.  They  are  oppressive  in 
character,  if  not  ungenerous  in  design ;  but,  nevertheless,  when 
they  are  legal  and  intact,  they  must  receive  due  consideration,  and 
their  vitality  must  be  declared.  Assuming  the  condition,  then,  t<> 
be  legal,  and  that  no  release  of  it  was  executed,  the  question  in 
this  controversy  which  seems  controlling  presents  itself,  and  that  is 
whether,  by  the  conveyance  to  Marks  the  condition  was  reserved 
to  Hogan  or  to  the  trustees.  The  learned  justice  presiding  at 
Special  Term  thought  that  it  was  reserved  to  the  latter.  Was  this 
conclusion  correct  ?  The  trustees  uniting  with  Hogau  in  the  deed 
to  Marks  were  acting  for  Hogan,  and  in  conveying  the  property 
were  carrying  out  the  agreement  of  sale,  which  he  had  made  before 
they  were  invested  with  the  powers  conferred  upon  them  by  him. 
On  examination  of  that  instrument  it  will  appear,  that  the  grant  is 
based  upon  the  agreement  of  sale  which  is  recited  between  Hogan 
and  Marks,  containing  the  condition  which  the  former  imposed 
upon  the  estate  to  be  transferred.  It  will  also  appear  that  Hogan 
and  wife  convey  to  Marks,  annexing  the  condition  in  proper  form, 
but  that  the  trustees  convey  it  subject  to  and  upon  the  condition 
thereinbefore  expressed.  The  condition  adopted  by  them  is  that 
asserted  in  accordance  with  the  agreement  of  sale  mentioned,  and 
the  grant  already  made  by  Hogan  and  wife,  and  in  the  same  rela- 
tion to  the  contracting  parties.  The  condition  thereinbefore 
expressed  is  that  imposed  by  Hogan  for  his  benefit,  and  assented 
to  and  accorded  him  by  Marks.  There  is  no  other  reservation 
made  by  the  trustees,  and  therefore  none  in  their  favor.  It  is 
Hogan's  condition  and  not  theirs,  which  is  preserved.  It  has,  there- 
fore, been  aptly  said,  that  "the  contract  to  convey;  the  intermediate 
grant  by  Hogan  to  the  trustees,  and  the  final  settlement  of  the 


POST  v.  WEIL.  423 


FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 


rights  of  all  the  parties  by  the  tripartite  deed,  constitute,  in  the 
reason  of  the  thing  and  in  the  judgment  of  law,  one  transaction. 
(See  Osborn  v.  Phelps,  19  Conn.,  63,  89  ;  Jackson  v.  Dunsbagh, 
1  Johns.  Gas,  92  ;  Stow  v.  Tifft,  15  Johns.,  458 ;  Church  v.  £rowny 
21  N.  Y.,  315,  330.)  Together  they  form  the  assurance  of  this  estate 
to  Marks.  "  Hogan  was  not  a  stranger  to  it,  and  being  in  substance 
the  original  grantor  to  Marks,  he  was  properly  the  reservee."  The 
intent  to  reserve  the  condition  to  Hogan,  seems  to  be  clearly  appa- 
rent therefore.  The  whole  structure  of  the  tripartite  conveyance 
confirms  this  view.  He  was  in  fact  the  grantor,  not  a  stranger,  unit- 
ing in  the  conveyance  to  Marks,  with  his  OM  n  trustees  to  whom  he 
had  conveyed  the  title  for  certain  purposes,  one  of  which  was  to 
carry  out  his  agreement  with  Marks,  but  securing  to  him  in  so 
doing  all  its  advantages  and  preserving  for  him  the  condition  pro- 
vided by  antecedent  stipulation.  Courts  look  to  the  end  contem- 
plated by  a  deed,  and  not  merely  to  the  mode  taken  to  obtain  it. 
The  intention  will  prevail  if  it  can  be  ascertained  and  made  domi- 
nant without  violating  some  principle  of  law  or  equity  that  should 
be  sustained.  This  rule  of  interpretation  is  adopted  and  made 
imperative  in  this  State  by  statute.  (Roe  v.  Tranmar,  2  Smith's 
Leading  Cases  [7th  Am.  ed.],  461,  note;  Jackson  v.  JDunsbagh,  1 
Johns.  Cases,  92 ;  1  R.  S.,  748,  §  2  ;  Nicoll  v.  N.  Y.  and  Erie  R.  R. 
Co.,  12  N.  Y.,  128  ;  Bridger  v.  Pierson,  45  N.  Y.,  604.)  The  princi- 
ple applies  to  conditions  as  well  (See  note  to  Dumpor's  Case,  1 
Smith's  Leading  Cases  [6th  Am.  ed.],  128 ;  Nicoll  v.  N.  T.  and 
Erie  R.  R.  Co.,  supra?)  There  are  other  consideration  which  favor 
this  view  as  to  the  intention  of  the  grantors.  It  is  true  that  we 
are  to  assume  that  all  the  estate  of  Hogan  in  the  land  passed  from 
him  to  his  trustees,  but  subject  to  the  trust.  "We  are  in  ignorance 
as  to  what  that  trust  was.  The  conveyancer,  and  it  may  be  said  all 
the  parties  in  interest,  deemed  it  necessary  to  unite  Hogan  and  wife 
with  the  trustees  in  the  conveyance  to  Mark,  although  all  the 
estate  he  had,  had  been  aliened  to  the  trustees.  It  is  not  unreas- 
onable to  suppose  that  this  formality  was  predicated  of  the  prop- 
osition, that  by  the  then  asserted  law  of  the  State,  conditions  such 
as  that  contained  in  the  deed  to  Marks  could  only  be  reserved  for 
the  benefit  of  the  grantor  and  his  heirs,  and  that  no  other  could 
take  advantage  of  them.  (Nicoll  v.  N.  T.  and  Erie  R.  R.  Co., 


424  SHERIDAN  v.  MAYOR. 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

supra.)  It  was  doubtless  in  the  minds  of  the  trustees  and  Hogan 
that  the  former  after  accomplishing  the  object  of  the  grant  from 
him,  might,  as  they  did  in  fact,  transfer  or  convey  to  him,  tht 
estate  unappropriated  and  as  the  land  conveyed  to  Marks  if  for- 
feited by  condition  broken  might  not  be  necessary  for  the  full  per- 
formance of  the  trust  duties,  the  condition  should  be  continued  for 
the  benefit  of  Hogan  by  the  deed  by  which  the  grant  was  perfected 
to  Marks.  This  was  a  cautious  and  proper  view  of  the  subject 
considered  in  all  its  relations  present  and  future  and  with  reference 
to  the  rules  of  law  or  the  doubts  that  might  arise.  It  seemed  to 
be  settled  at  least  that  before  breach  there  was  no  assignable 
interest  (12  N.  Y.,  supra)  and  there  being  no  breach  a  reconvey- 
ance might  destroy  the  condition  itself  if  it  were  reserved  to  the 
trustees  and  not  to  Hogan.  Hence  no  doubt  the  character  of  the 
grant  from  Hogan  in  the  tripartite  deed,  by  which  he  warranted  the 
title  and  assumed  the  responsibility  which  such  a  covenant  imposes, 
and  hence  the  full  covenants  by  him  made  in  that  instrument.  It 
follows  from  these  views  that  the  judgment  pronounced  below  was 
erroneous  and  should  be  reversed. 

DANIELS,  J.,  concurred. 

Present  —  DAVIS,  P.  J.,  BEADY  and  DANIELS,  JJ. 

Judgment  reversed,  new  trial  ordered,  costs  to  abide  event. 


FRANCIS  SHERIDAN,  APPELLANT,  v.  THE  MAYOR,  ETC., 
OF  THE  CITY  OF  NEW  YORK,  RESPONDENTS. 

Witness — credit  due  to  uncontradicted  statements  of —  how  affected  by  interest  in  suit. 

The  rule,  that  where  a  disinterested  witness  testifies  to  the  existence  of  a  fact 
within  his  own  knowledge,  and  nothing  appears  to  discredit  his  statement,  which 
is  not  inherently  improbable,  neither  the  court  nor  the  jury  can  arbitrarily 
reject  it,  does  not  apply  to  the  evidence  of  a  person  whose  interest  it  is  to 
establish  the  truth  of  what  he  swears  to,  as  where  he  is  to  receive  the  fruits  of 
the  litigation,  either  partially  or  wholly,  in  case  it  may  prove  successful. 
(BRADY,  J.,  dissenting.) 

The  uncontradicted  evidence  of  a  party,  or  other  interested  witness,  is  not 
necessarily  conclusive  upon  either  the  court  or  Uie  jury.  (BRADY,  J  ,  dissenting. ) 


SHERIDAN  v.  MAYOR.  425 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

APPEAL  from  a  judgment  in  favor  of  the  defendant,  entered  upon 
the  verdict  of  a  jury,  and  from  an  order  denying  a  motion  for  a  new 
trial. 

Ch.  P.  Shaw,  for  the  appellant. 
D.  J.  Dean,  for  the  respondents. 

DANIELS,  J. : 

The  demands  in  suit  arose  out  of  the  performance  of  work  and 
materials  used  in  repairing  some,  of  the  public  buildings  in  the 
county  of  New  York.  The  work  was  done  and  the  materials  sup- 
plied by  Morgan  Jones,  as  a  plumber,  and  the  action  was  brought 
by  him  for  the  recovery  of  the  demands.  During  its  pendency  it 
was  claimed  that  he  assigned  them  to  the  plaintiff,  who  for  that 
reason  was  substituted  in  his  place  as  plaintiff  in  the  action.  It 
appeared  by  the  evidence  that  a  considerable  portion  of  the  work 
had  been  done,  and  the  materials  for  it  furnished  by  the  assignor 
and  persons  in  his  employment,  and  that  the  bills  had  been  rendered 
to  the  board  of  supervisors,  while  that  body  was  in  existence,  and 
that  they  were  audited  and  allowed  by  it.  From  the  charge,  it  is 
very  evident  that  the  court  took  that  view  of  the  case,  and  as  it 
appeared  generally  that  work  and  materials  of  the  description 
mentioned  had  been  performed  and  famished  and  the  bills  had 
been  audited  by  the  board,  that  was  held  to  be  conclusive  in  favor 
of  their  allowance,  unless  there  was  evidence  of  positive  fraud  per- 
petrated by  Jones  upon  the  county  through  collusion  with  the  board. 
The  learned  judge  then  added :  "  But  I  do  not  understand  any  such 
defense  to  be  set  up  in  the  pleadings,  or  that  there  was  any  such 
attempt  to  defraud  the  county  of  New  York  by  the  auditing  of 
these  bills.  If  these  repairs  have  not  been  done,  if  this  work  charged 
for  in  these  bills  has  not  been  rendered  or  performed,  if  there  was 
fraud  in  it,  it  appears  to  me  that  the  proper  officials  should  have 
investigated  it  under  the  circumstances  and  found  out  where  the 
fraud  was.  But  as  I  said  before,  I  do  not  understand  it  to  be  set 
up  in  the  answer  that  this  was  a  fraudulent  scheme  to  get  money 
out  of  the  public  treasury."  From  these  portions  of  the  charge  it  is 
entirely  clear,  that  the  jury  were  not  left  at  liberty  to  infer  that 
HUN— VOL.  VIII.  54 


426  SHERIDAN  v.  MAYOR. 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

any  question  of  fraud  in  the  performance  of  the  work,  or  the  allow- 
ance of  the  bills,  was  submitted  to  their  consideration.  The  charge 
on  the  contrary  was,  that  the  proof  of  performance  and  the  auditing 
of  the  bills  were  conclusive  in  the  plain  tift's  favor,  unless  fraud 
should  be  shown,  and  that  nothing  of  that  kind  had  been  alleged 
or  proved.  That  was  as  favorable  a  statement  of  the  law  of  the 
case  as  the  plaintiff  could  require.  And  if  improper  evidence  had 
been  given,  or  the  plaintiff  had  been  required  to  prove  more  thaii 
he  was  obliged  to  on  this  subject,  he  could  have  been  injured  by 
neither  after  this  unequivocal  statement  of  the  case  in  his  favor. 
The  court  considered  the  case  as  having  been  made  out  by  the 
evidence  in  all  respects,  except  that  of  the  right  of  the  plaintiff  to 
maintain  the  action.  For  it  was  stated  to  the  jury  that  "  the  only 
real  issue  which  appears  to  be  raised  by  the  pleadings  and  the 
proof  is,  whether  this  plaintiff  is  the  real  party  in  interest."  The 
court  then  stated  that  a  man  could  give  his  property  away,  and 
after  doing  it  could  not  revoke  the  gift.  But  if  it  was  a  mere  ruse 
or  subterfuge  and  not  a  real  transaction,  the  plaintiff  would  not  be 
entitled  to  recover.  The  production  of  an  assignment  would  ordi- 
narily be  sufficient  to  support  a  transfer,  but  if  the  jury  believed 
"  from  the  evidence  that  the  real  party  in  interest  in  this  suit  is 
Morgan  Jones,  and  that  this  is  a  sham  transaction,  then  I  think 
the  plaintiff  should  be  defeated  in  the  action.  If  it  is  otherwise, 
if  the  plaintiff,  the  assignee,  is  the  real  party  in  interest,  then  I 
think,  under  the  evidence,  the  plaintiff  is  entitled  to  recover." 
This,  it  will  be  perceived,  was  concisely  and  clearly  presented  aa 
the  only  point  to  be  settled  by  the  jury.  The  plaintiff  claimed 
that  it  should  not  have  been  submitted  to  them,  but  that  a  verdict 
should  be  directed  in  his  favor,  and  excepted  to  the  refusal  of  the 
court  so  to  hold.  An  exception  was  also  taken  in  general  terms  to 
the  refusal  of  the  court  to  charge  four  different  and  several  propo- 
sitions presented  by  one  request  in  his  favor.  In  the  main  they 
were  charged,  and  for  that  reason  this  general  exception  was 
insufficient  to  present  the  point  of  variance  between  them  and  the 
instructions  given.  But  if  it  could  raise  that  question,  there  is  no 
substantial  ground  presented  for  sustaining  it.  For  the  court  did 
charge  that  the  assignment  was  sufficient  ordinarily  to  support  a 
transfer.  And  that  the  assignor  could  give  his  claim  away.  But 


SHERIDAN  v.  MAYOR.  427 

FIKST  DEPARTMENT,  OCTOBER  TERM,  1876. 

it  was  not  charged  that  there  was  no  evidence  to  overcome  it» 
bona  fide  character,  and  that  the  testimony  of  the  witnesses  sus- 
tained it.  In  those  respects  the  case  was  submitted  to  the  jury 
and  no  exception  wat  made  to  the  propriety  of  that  course,  unless 
the  one  taken  in  geneial  terms  was  sufficient.  And  that,  under  the 
authorities,  cannot  be  held  to  be  the  case.  If  the  plaintiffs  counsel 
had  been  dissatisfied  with  what  was  said  by  the  court,  he  should 
have  excepted  explicitly  to  the  submission  of  those  facts  to  the 
jury.  (  Walsh  v.  "Kelly,  40  JS".  Y.,  556  ;  Requa,  v.  Gity  of  Rochester, 
45  id.,  130;  Ayrault  v.  Pacific  Bank,  47  id.,  570.)  And  that  he 
did  not  do. 

But  if  he  had  done  that,  perhaps  no  more  would  have  been 
accomplished  than  was  already  secured  by  excepting  to  the  refusal 
to  direct  a  verdict  in  the  plaintiff's  favor.  That  presented  the 
point  as  to  the  right  of  the  plaintiff  to  recover  as  a  matter  of  law. 
And  it  is  maintained  that  that  had  been  established  by  the  evi- 
dence. The  controversy  was  finally  limited  to  the  question, 
whether  the  demands  had  been  actually  transferred  to  the  plaintiff, 
and  all  the  evidence  given  in  support  of  that  was  elicited  from 
the  plaintiff  himself  and  his  assignor.  Where  a  disinterested  wit- 
ness testifies  to  the  existence  of  a  fact  as  within  his  own  knowledge, 
and  nothing  appears  tending  to  discredit  his  statement,  and  it  is 
not  inherently  improbable,  neither  the  court  nor  the  jury  can  arbi- 
trarily reject  it.  But  the  same  rule  does  not  apply  to  the  evi- 
dence of  a  person  whose  interest  it  is  to  favor  himself  by  what  he 
may  swear  to.  That  circumstance  alone  is  sufficient  to  subject  his 
statement  to  suspicion.  The  rule  of  the  common  law  was  so  strin- 
gent upon  this  subject  that  it  rejected  the  evidence  of  parties  and 
other  interested  witnesses,  as  unworthy  of  credit,  because  of  the 
nn certainty  of  their  statements  being  truthful.  This  has  been 
abrogated  by  statute  so  far  as  to  render  them  competent  witnesses, 
leaving  the  question  of  their  credit  to  be  determined  as  an  ordinary 
matter  of  fact  in  the  case ;  and  under  this  change,  where  the 
interest  may  be  a  controlling  one,  whether  the  witness  may  be 
believed,  notwithstanding  its  existence,  must  now  be  a  matter  of 
fact  to  be  determined  by  the  jury.  The  circumstance  that  the 
witness  is  to  receive  the  fruits  of  the  litigation,  either  partially  or 
wholly,  in  case  it  may  prove  successful,  will  certainly,  in  some 


428  SHERIDAN  v.  MAYOR. 

FIBST  DEPARTMENT,  OCTOBER  TERM,  1876. 

instances,  be  sufficient  to  warrant  the  conclusion  that  the  evidence 
given  by  him  is  not  reliable.  And  that  must  be  more  particularly 
so  when  the  proof  of  the  fact  in  dispute  is  not  possibly  within  the 
knowledge  of  the  opposing  party,  and  might,  if  true,  be  corroborated, 
as  it  could  have  been  in  this  case,  by  further  evidence  under  the 
control  of  the  party  insisting  upon  it. 

The  conclusion  that  the  uncontradicted  evidence  of  a  party  or 
other  interested  witness  is  not  necessarily  controlling,  received  the 
direct  sanction  of  the  Court  of  Appeals  in  Elwood  v.  Western 
Union  Telegraph  Co.  (45  N.  Y.,  549),  for  it  was  there  said  by 
Judge  RAPALLO,  who  delivered  the  opinion  of  the  court,  that  the 
rule  as  to  the  effect  of  the  evidence  given  by  witnesses  "  is  subject 
to  many  qualifications.  There  may  be  such  a  degree  of  improba- 
bility in  the  statements  themselves  as  to  deprive  them  of  credit, 
however  positively  made.  The  witnesses,  though  unimpeached, 
may  have  such  an  interest  in  the  question  at  issue  as  to  affect  their 
credibility.  The  general  rules  laid  down  in  the  books  at  a  time 
when  interest  absolutely  disqualified  a  witness,  necessarily  assumed 
that  the  witnesses  were  disinterested.  That  qualification  must,  in 
the  present  state  of  the  law,  be  added."  (Id.,  553,  554.) 

Whether  the  assignment  was  ever  delivered  or  not,  or  made  bona 
fide,  or  as  a  mere  sham,  was  for  the  jury  to  decide,  as  the  only 
evidence  in  support  of  it  was  given  by  the  plaintiff  himself  and 
the  assignor.  The  court  was,  therefore,  right  in  declining  to  direct 
a  verdict  and  in  refusing  to  charge  that  there  was  no  evidence  to 
overcome  the  presumption  of  the  bona  fide  character  of  the  assign- 
ment and  that  the  testimony  of  the  witnesses  sustained  it.  If 
there  was  no  delivery  of  the  assignment,  or  it  was  a  mere  ruse  or 
sham,  the  plaintiff  was  not  the  party  in  interest  and  he  was  not 
entitled  to  recover.  The  jury  must  have  found  one  of  these  facts 
against  the  plaintiff  for  they  could  not  otherwise  have  rendered  a 
verdict  for  the  defendant. 

Upon  the  cross-examination  of  the  original  plaintiff  he  wa8 
asked  whether  he  had  not  been  sued  by  the  defendant  after  he 
commenced  this  action,  for  $350,000.  This  was  objected  to  in 
general  terras  and  the  court  allowed  the  answer  to  be  taken.  The 
plaintiff's  counsel  excepted  to  the  ruling  and  the  witness  answered 
that  he  had  been.  He  was  then  asked  whether  it  was  not  subse- 


SHERIDAN  v.  MAYOR.  429 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

quent  to  that  he  made  the  assignment,  and  he  answered  that  ill 
was.  A  like  objection  was  taken  to  this  question  and  the  ruling 
of  the  court  allowing  it  to  be  answered  was  excepted  to.  As  it 
was  claimed  by  the  defendant  that  no  actual  or  real  assignment 
had  been  made  of  the  demands  in  suit,  this  evidence  seems  to  have 
been  proper.  It  tended  to  render  it  probable  that  the  transaction 
was  only  a  colorable  one  made  to  avoid  some  possible  effect  of  a 
recovery  against  the  witness.  The  evidence  was  also  proper  to 
show  that  he  was  still  a  party  in  interest  in  the  case,  and  that,  if 
true,  would  tend  to  impair  his  credit  as  a  witness. 

No  sufficient  reason  has  been  found  for  a  reversal  of  the  judg 
ment,  or  of  the  order  denying  the  motion,  made  for  a  new  trial. 
Both  should  accordingly  be  affirmed. 

DAVIS,  P.  J. : 

The  evidence  showed  that  Jones  had  been  sued  by  the  defendant 
for  $350,000,  and  afterwards  assigned  the  claim  for  which  this 
action  was  then  pending,  to  the  present  plaintiff.  That  fact  alone 
threw  a  shadow  of  suspicion  upon  the  bona  fides  of  the  assignment, 
for  it  was  claimed  by  the  defendant  that  the  assignment  was  made 
to  escape  the  possible  consequences  of  a  recovery  by  the  defend- 
ant, and  the  right  that  might  arise  to  extinguish  the  demand  in 
this  action  by  set-off.  The  jury  under  such  circumstances  had  a 
right  to  scrutinize  the  testimony  of  plaintiff  touching  the  assign- 
ment, with  strictness;  and  to  discredit  it  if  they  believed  the 
assignment  to  have  been  made  in  bad  faith.  To  say  that  the  jury 
must  take  the  testimony  of  an  interested  party  as  true  without 
qualification,  because  some  other  witness  does  not  contradict  it  by 
direct  testimony,  is  not  only  to  trench  on  the  province  of  the  jury, 
but  to  dissipate  all  distinction  between  the  testimony  of  disinter- 
ested witnesses,  and  those  whose  interest  in  a  recovery  extends  to  the 
whole  subject-matter  of  the  action.  This  would  be  against  the 
policy  of  the  common  law,  and  no  statute  has  yet  gone  the  length 
of  establishing  such  a  rule.  There  is  nothing  improbable  or  incon- 
sistent with  the  nature  of  things  in  the  conclusion  reached  by  the 
jury.  It  requires  some  effort  of  credibility  to  believe  that  the 
assignment  was  made  in  good  faith,  upon  a  bona  fide  sale  of  the 
claim  in  litigation.  Men  are  not  prone  to  purchase  law  suits,  and 


430  SHERIDAN  «.  MAYOR. 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

the  jury  might  well  have  supposed  that  the  present  plaintiff,  had 
consented  to  become  a  mere  locum  tenena  of  the  real  plaintiff,  inas- 
much as  he  himself  did  not  venture  upon   any  corroboration   of 
the  alleged  assignment. 
I  must  therefor  concur  with  my  brother  DANIELS. 

BRADY,  J.  (dissenting) : 

There  is  no  conflict  of  evidence,  in  this  case,  on  the  subject  of 
the  assignment  of  the  claim  of  Jones  to  the  plaintiff. 

The  only  way  to  discredit  the  testimony  relating  to  it,  is  to  reject 
it  upon  the  presumption  that  it  is  false,  to  assume  that  the  statement 
made  by  the  witness  is  untrue.  The  courts  have  not  gone  so  far  as 
to  allow  this  to  be  done.  In  the  case  in  45  New  York,  referred  to 
by  Justice  DANIELS,  there  was  evidence  presumptive  in  character 
against  the  defendants,  and  the  question  was,  whether  the  positive 
evidence  given  in  their  behalf  overcame  the  presumption  or 
prima  facie  evidence  against  them.  That  case  did  not  present 
the  question  whether  the  jury  could  disregard  evidence  wholly 
nncontradicted. 

In  Lomer  v.  Meeker  (25  N.  Y.,  363),  SMITH,  J.,  said  :  "  The  posi- 
tive testimony  of  an  unimpeached,  uncontradicted  witness,  cannot 
be  disregarded  by  court  or  jury  arbitrarily  or  capriciously ; "  and  in 
the  case  in  45  New  York,  Justice  RAPALLO  states  the  rule  to  be, 
that  such  testimony  should  be  credited  and  have  the  effect  of  over- 
coming a  mere  presumption.  In  this  case  there  was  nothing  to 
overcome  ;  no  presumption  except  such  as  might  be  created  by,  the 
evidence  itself. 

There  was  nothing  to  gainsay  it.  It  will  also  be  perceived  on  a 
careful  perusal  of  Judge  RAPALLO'S  opinion,  that  his  deductions  are 
based  not  on  intrinsic,  inherent  improbability  or  falsity  in  the  state- 
ment alone,  but  rest  upon  the  presence  of  facts  and  circumstances 
disclosed  by  other  evidence  which  create  presumptions  in  conflict 
with,  or  contradictory  of  positive  evidence  given,  and  thus  two 
elements,  not  one  only,  are  considered.  The  circumstances  disclosed 
by  Sheridan  in  reference  to  the  assignment  may  have  been  sus- 
picious, but  many  transactions  which  bear  such  an  impress  have 
been  honest  and  so  declared  by  courts  of  justice.  When  the  assignor, 
Jones,  was  put  upon  the  stand  he  was  not  interrogated  by  the 


MECHANICS  &  TRADERS'  BANK  v.  DAKIN.         431 
FIRST  DEPARTMENT,  OCTOBER  TEKM,  1876. 

s'  counsel  in  relation  to  the  assignment ;  no  questions  wert 
asked  hii  *  on  the  subject. 

This  left  the  statements  of  the  other  witnesses  uncontradicted 
and  the  jury  could  not  arbitrarily  reject  their  testimony. 

There  was  no  pretense  of  fraud  against  the  claim  itself  and  noth- 
ing to  warrant  the  conclusion  that  the  plaintiff  had  sworn  falsely. 

I  think  a  new  trial  should  be  granted. 

Judgment  and  order  affirmed. 


THE  MECHANICS  AND  TRADERS'  BANK  OF  JER- 
SEY CITY,  APPELLANT,  v.  HENRY  DAKIN  AND  OTHERS, 
RESPONDENTS 

Conflicting  excision*  of  Court  and  Commission  of  Appeals  —  duty  of  trial  court. 

Jpon  an  appe»*  froiv  a  judgment  entered  upon  au  order  dismissing  the  com- 
plaint in  thk  ACtioix  the  Commission  of  Appeals  granted  a  new  trial,  holding 
that  upon  th  facts  Droved  the  action  could  be  maintained ;  after  the  argu- 
ment, and  befL.tS  the  t\;cision  of  this  case,  the  Court  of  Appeals,  in  a  case  then 
before  it,  decided  that  »-ich  an  action  could  not  be  maintained.  Upon  this  case 
coming  on  for  -  new  uial,  held,  that,  as  the  Court  of  Appeals  had  decided 
that  such  an  act-on  could  not  be  maintained,  such  decision  became  the  law  of 
the  State,  and  as  ,,.-ch  binding  upon  this  court  and  the  parties  to  this  action,  and 
that  a  judgment  v.  itered  upon  an  order  dismissing  the  complaint  herein  wan 
proper,  and  shouK.  »e  affirmed.  (DAVIS,  P.  J.,  dissenting.) 

APPEAL  from  a  'udgment  entered  upon  an  order  dismissing  the 
x>mplaint  herein.  This  action  was  commenced  by  the  plaintiff  to 
set  aside  as  fraudulv.  \t  an  assignment  of  a  mortgage  executed  by  the 
defendant  Dakin  to  Jie  defendant  Jewell,  and  to  subject  the  same 
to  the  lien  of  an  attachment  obtained  by  the  plaintiff  in  another 
action  against  the  defendant  Dakin,  in  which  he  had  recovered  a 
judgment  on  which  an  execution  had  been  issued.  The  Commission 
cf  Appeals  decided  (51  N.  T.,  519),  that  the  action  could  be  main- 
tained, and  reversed  a  jud^vient  in  favor  of  the  defendant  ordering 
a  new  trial. 

F.  Shepard,  for  the  appellant. 
Wm.  H.  AmouXj  for  the  re&^  mdents. 


MECHANICS  &  TRADERS'  BANK  v.  DAKIN. 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

DANIELS,  J. : 

Upon  the  first  trial  of  this  action  the  complaint  was  dismissed 
for  the  reason  that  it  was  considered  that  such  an  action  could  not 
properly  be  maintained.  The  Commission  of  Appeals  reversed  the 
judgment  entered  on  that  dismissal,  and  held  that  the  action  could 
be  maintained.  (The  Mechanics  and  Trader*?  Bank  of  Jersey  City 
v.  Dakin,  51 N.  Y.,  519.)  The  case  was  argued  before  the  decision 
of  the  case  of  Thurber  v.  Blanck  (50  id.,  80),  which  held  the  law 
to  be  the  other  way,  and  that  such  an  action  could  not  be  main- 
tained. After  both  decisions  had  been  made  this  action  came  on 
for  trial  under  the  reversal  of  the  judgment,  and  the  direction  of 
a  new  trial  by  the  Commission  of  Appeals,  and  upon  that  trial  the 
complaint  was  again  dismissed,  for  the  reason  that  the  decision 
made  by  the  Court  of  Appeals  was  to  be  considered  and  followed 
as  the  controlling  authority.  The  plaintiff  has  again  appealed, 
claiming  that  the  decision  of  the  Commission  of  Appeals  has  settled 
the  question  of  its  rights  to  maintain  the  present  action  against  the 
defendants,  and  that  this  decision  must  be  followed  notwithstand- 
ing the  contrary  has  been  held  by  the  Court  of  Appeals.  In  sup- 
port of  the  appeal,  authorities  have  been  cited  which  maintain  the 
position  that  a  decision  made  in  a  case  by  one  appellate  tribunal  will 
not  be  reconsidered  in  the  same  case  by  another  having  co-ordinate 
authority,  when  it  may  be  pending  upon  another  appeal,  for  the 
reason  that  the  decision  actually  made  will  be  held  to  be  res  a<lju- 
dicata  between  the  parties  to  it,  and  conclusively  controlling  upon 
them.  (Justice  v.  Lang,  52  N.  Y.,  323  ;  Terry  v.  Wait,  56  id., 
91  ;  Belton  v.  Baxter,  58  id.,  411.)  These  authorities  sustain  that 
proposition,  but  they  were  not  affected  by  the  circumstance  exist- 
ing in  this  case,  that  the  continuing  court  of  last  resort  had,  in  the 
mean  time,  held  the  law  to  be  different  from  the  annunciation  pre- 
viously made  of  it.  That  distinguishes  the  present  case  from  those 
cited  in  support  of  the  appeal,  and  it  is  a  circumstance  whose  effect 
cannot  properly  be  disregarded,  for  it  is  clear  now,  from  the  effect 
of  the  last  decision  made,  that  the  law  was  erroneously  expounded 
in  the  decision  made  in  this  case.  As  the  principle  is  now  estab- 
lished by  a  decision  which  must  be  binding  upon  the  court  of 
last  resort  for  the  time  being,  the  present  action  cannot  be  main- 
tained. That  has  now  become  as  much  the  law  of  the  State  as 


MECHANICS  &  TRADERS'  BANK  v.  DAKIN.         433 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

though  it  had  been  declared  by  an  act  of  the  legislature  enacted  at 
the  same  time,  and  it  was  operative  and  binding  on  the  Special 
Term  when  this  cause  last  came  on  for  trial.  That  court  was 
bound  to  administer  the  law  as  it  was  then  found  to  exist.  The 
case  was  before  it  on  its  merits,  and  the  Court  of  Appeals  had  held 
that  such  an  action  could  not  be  maintained.  That  was,  at  the  time, 
the  law  of  the  State,  and  in  its  administration  the  court  could  do 
no  less  than  to  dismiss  the  complaint.  It  would  be  entirely  unreas- 
onable for  the  court  to  hold  that  this  action  could  be  maintained, 
when  all  others  depending  on  a  similar  state  of  facts  must  be  dis- 
missed, as  would  have  been  the  case  if  the  decision  of  the  Commis- 
sion of  Appeals  had  been  followed.  There  can  be  but  one  prevail- 
ing rule  of  law  upon  the  same  subject  at  the  same  time,  and  that 
which  for  the  time  exists  should  be  followed  as  controlling.  If  no 
change  had  been  made,  the  Court  of  Appeals  would  not  have  dis- 
turbed the  conclusion  of  the  commission  in  this  case,  even  if  that 
had  been  considered  of  doubtful  soundness.  But,  without,  any 
application  of  that  nature  having  been  made,  a  general  rule  has 
been  promulgated  having  the  effect  of  abrogating  that  conclusion, 
and  it  cannot  be  supposed  that  the  court  will  now  allow  this  case 
to  be  disposed  of  by  the  application  of  a  principle  held  not  to  be 
the  law  of  the  State.  It  would  involvel  an  inconsistency  which 
would  subject  the  administration  of  justice  to  merited  condemna- 
tion. That  such  an  alternative  would  be  tolerated  is  not  to  be 
supposed.  For  that  reason  the  parties  should  not  be  subjected  to 
the  delay  and  expense,  which  would  be  caused  by  a  judgment  at 
this  time  in  the  plaintiff's  favor  conformably  to  the  decision  of  the 
Commission  of  Appeals,  and  its  subsequent  reversal  and  the  direc- 
tion of  another  trial  by  the  Court  of  Appeals,  for  the  purpose  of 
governing  its  disposition  by  the  rule  which  that  tribunal  has  now 
established  as  the  law.  The  course  taken  at  the  trial  was  a  more 
proper  one,  of  applying  the  law  to  the  facts,  as  that  has  finally 
become  established  by  the  determinations  of  the  court  of  last 
resort. 

The  judgment  appealed  from  should  be  affirmed. 

BBADY,  J.,  concurred. 

Him— VOL.  VIII.        55 


434         MECHANICS  &  TRADERS'  BANK  v.  DAKIN. 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

DAVIS,  P.  J.  (dissenting) : 

When  this  case  was  before  the  Commission  of  Appeals,  that 
court,  in  respect  to  it,  was  not  only  the  court  of  last  resort,  but 
was  possessed  of  the  supreme  and  exclusive  jurisdiction  to  deter- 
mine the  questions  involved  in  the  particular  case.  The  court 
held  that  the  plaintiffs  could  maintain  this  action,  and  reversed 
the  judgment  of  the  Supreme  Court  (which  had  dismissed  the 
complaint),  and  ordered  a  new  trial.  (51  N.  Y.,  510.)  This 
appeal  is  from  the  judgment  of  the  Special  Term  rendered  upon 
the  new  trial  thus  ordered.  It  appears  that  subsequently  to  the 
argument  of  this  case  in  the  Commission  of  Appeals,  the  case 
of  Thurber  v.  JSlanck,  which  involved  the  same  question,  was 
argued  before  the  Court  of  Appeals,  and  the  question  involved 
in  both  cases  was  under  consideration  at  the  same  time  by  both  tri- 
bunals. The  case  in  the  Court  of  Appeals  was  first  decided,  and 
the  opinion  of  that  court  appears  in  50  N.  Y.,  80.  That  decision, 
it  seems,  was  not  brought  to  the  notice  of  the  Commission  of 
Appeals  before  judgment  was  pronounced  in  this  caee.  The  deci- 
sions of  the  two  courts  are  in  direct  conflict.  The  only  question 
presented  on  this  appeal  is,  which  of  these  decisions  was  obligatory 
upon  the  Special  Term  on  the  trial  of  this  action.  The  Special 
Term  held  that  it  was  bound  to  follow  the  decision  of  the  Conrt  of 
Appeals  in  Thurber  v.  Blanck,  and  accordingly  dismissed  the 
plaintiff's  complaint.  The  question  in  the  case  was  not  one  of 
stare  decisis,  but  of  res  adjudicata  between  the  parties  to  a  particu- 
lar action.  The  decision  of  the  Court  of  Appeals  in  Thurber  v. 
Blanck  (ubi  supra),  and  which  has  been  substantially  reiterated  in 
Lynch  v.  Crary  (52  N.  Y.,  183),  is  undoubtedly  the  law  of  the 
State  to  be  followed  in  those  and  all  subsequently  occurring  cases  ; 
but  those  decisions  are  not  at  all  at  war  with  the  doctrine  of  res 
adjudicata  as  between  the  parties  to  an  action,  when  the  same  ques- 
tion in  the  same  case  is  brought  to  the  consideration  of  an  inferior 
tribunal  upon  a  retrial  of  the  action.  Nor  is  the  question  what  the 
court  of  last  resort  may  or  ought  to  do  in  the  particular  case,  when 
it  again  reaches  that  tribunal,  properly  before  the  subordinate  court 
upon  such  retrial.  Both  by  reason  and  authority,  the  court  in 
•which  the  retrial  is  had  is  bound,  by  the  doctrine  of  res  adjudicata^ 
to  accept  the  law  of  the  case  as  established  by  the  appellate  tribu 


MECHANICS  &  TRADERS'  BANK  u.  DAKIN.         435 

FOIST  DEPARTMENT,  OCTOBER  TERM,  1876. 

nal.  Hence  we  think  that  the  Special  Term  should,  in  this  case, 
have  received  the  law  as  settled  by  the  Commission  of  Appeals, 
without  looking  beyond  the  decision  of  that  court  to  ascertain  what 
another  tribunal  had  decided  in  other  cases.  It  was  not  the  duty 
of  the  Special  Term  to  pass  upon  the  merits  of  the  two  conflicting 
decisions,  but  to  respect  the  decision  of  the  Commission  of  Appeals 
as  establishing  the  law  applicable  to  the  facts  of  the  case  before  it,  and 
.  to  be  applied  thereto  by  all  subordinate  tribunals.  This  rule  has  been, 
as  we  think,  established  and  applied  by  the  Court  of  Appeals  in  sev- 
eral cases  where  the  decisions  of  the  Commission  of  Appeals  were 
sought  to  be  reviewed  upon  subsequent  appeals  in  the  same  actions. 
In  Terry  v.  Wait  (56  N.  Y.,  91),  which  was  a  case  that  went 
down  for  a  new  trial  upon  the  decision  of  the  Commission  of 
Appeals,  and  came  before  the  Court  of  Appeals  after  the  second 
trial,  the  latter  court  said  :  "  Without  intimating  doubts  as  to  the 
correctness  of  the  decision  of  the  commission,  we  decline  to  inter- 
fere with  it  on  the  ground  that  it  is  an  adjudication  between  the 
same  parties  in  the  same  case,  upon  the  very  point  which  we  are 
now  asked  to  consider."  And  upon  motion  for  a  reargument  of 
that  case  the  court  reiterated  its  refusal  to  review  the  decision.  In 
Justice  v.  Lang  (52  N.  Y.,  323),  which  was  a  second  appeal  of  the 
same  case  to  the  Court  of  Appeals,  the  court  held  that  its  former 
decision  (reported  in  Justice  v.  Lang,  42  N.  Y.,  493),  must  be 
regarded  as  the  law  of  the  case,  and  the  judge  who  delivered  the 
opinion  said  :  "  The  question  is  not  merely  whether  the  case  as 
reported  is  an  authority  to  be  followed  as  a  precedent,  but  whether 
the  judgment  is  not  to  be  regarded  as  final  in  the  same  case,  and 
between  the  same  parties,  in  the  absence  of  any  new  evidence  or 
other  circumstance  to  take  it  out  of  the  rule."  The  court  held  in 
another  case  recently  before  it  (Sackctt  v.  Ayraulf),  "that  it  would 
not  reconsider  the  question  deliberately  decided  by  the  court  upon 
a  former  appeal  in  the  same  case,  but  would  adopt  and  follow  such 
decision.  Whether,  therefore,  the  case  was  well  decided  as  reported 
in  42  New  York,  will  not  be  considered."  And  in  Belton  v.  Baxter 
(58  N.  Y.,  411),  which  is  a  case  in  which  the  Commission  of 
Appeals  had  reversed  the  judgment  and  ordered  a  new  trial  (as 
will  appear  by  Belton  v.  Baxter,  54  N.  Y.,  245),  the  Court  of 
Appeals  on  appeal  from  such  new  trial  say :  "  Upon  the  forncei 


486         MECHANICS  &  TRADERS'  BANK  v.  DAKIN. 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

appeal  in  this  action,  it  was  held  that  the  plaintiff  should  have 
been  nonsuited  upon  his  own  showing,  the  learned  Commission  of 
Appeals  holding  that  under  the  circumstances  then  appearing  in 
evidence,  the  plaintiff  was  culpably  negligent  in  attempting  to 
cross  the  street  upon  the  mere  calculation  of  the  chances  of  injury ;" 
and  that  "if  the  evidence  upon  the  second  trial  had  been  the  same 
as  upon  the  first,  the  plaintiff  would  have  been  concluded  by  this 
adjudication.  The  question  recurring  in  the  same  action  between 
the  same  parties,  would  have  been  res  adjudicata  in  this  and  in  all 
other  courts,  by  the  judgment  of  the  court  of  last  resort.*?  These 
cases  we  think  are  sufficient  adjudications  of  the  rule  to  require  us 
to  reverse  the  judgment  of  the  court  below.  They  are  not  with- 
out abundant  authority  and  support.  In  Martin  v.  Hunter's 
Lessee  (1  "Wheaton,  355),  the  court  say :  "  In  ordinary  cases  a 
second  writ  of  error  has  never  been  supposed  to  draw  in  question 
the  propriety  of  the  first  judgment,  and  it  is  difficult  to  see  how  such 
a  proceeding  could  be  sustained  upon  principle.  A  final  judgment 
of  this  court  is  supposed  to  be  conclusive  upon  the  rights  which  it 
decides."  (See  Hopkins  v.  Lee,  6  Wheat.,  113 ;  Exparte  Sibbald,  12 
Peters,  492  ;  Washington  Bridge  Co.  v.  Stewart,  3  How.  [U.  S.], 
413  ;  Roberts  v.  Cooper,  20  id.,  480  ;  see  also  Akerly  v.  Vilas,  24 
Wis.,  165,  where  the  effect  of  the  doctrine  of  res  adjudicata  in  the 
same  action  between  the  same  parties  is  very  fully  and  ably  con- 
sidered.) It  is  not  for  us  to  determine  whether  the  Court  of  Appeala 
under  the  peculiar  circumstances  of  this  case,  ought  or  ought  not 
to  regard  itself  bound  by  the  decision  of  the  Commission  of  Appeals. 
That  is  a  question  which  peculiarly  belongs  to  that  tribunal  as  the 
court  of  last  resort,  and  no  subordinate  tribunal  is  justified  in 
anticipating  what  its  ruling  may  be.  "We  think  that  the  learned 
judge  below  erred  in  anticipating  that  the  Court  of  Appeals  would 
take  this  case  out  of  the  established  doctrine  of  res  adjudicata,  and 
that  it  is  our  duty  to  correct  the  error,  leaving  to  the  court  of  last 
resort  the  province  of  subjecting  the  case,  if  it  think  proper  to  do 
BO,  to  the  general  law  of  the  State  as  is  now  settled  by  its  own 
decisions.  I  think  the  judgment  ought  to  be  reversed  and  new 
trial  ordered  with  costs  to  abide  the  event. 

Judgment  affirmed. 


MATTER  OF  BRADY.  437 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 


IN  THE  MATTER  OF  WALTER  BRADY,  AN  IMPRISONED  DEBTOK. 

Discharge  from  imprisonment  —  meaning  of  '•just  and  fair  "  — w/iat  must  be  shown 
to  prevent  discharge  —  2  R.  S. ,  chapter  5,  title  1,  article  6. 

Under  the  provisions  of  the  act  providing  for  the  discharge  of  imprisoned  debt- 
ors, it  is  sufficient  to  prevent  the  discharge  of  a  debtor  if  it  be  shown  that  he 
has  been  guilty  of  the  acts  which  he  is  required  to  negative  by  the  form  of  oath 
prescribed  by  section  5  of  said  act. 

It  sufficiently  appears  that  the  proceedings  of  the  debtor  have  not  been  "  just  and 
fair  "  within  the  meaning  of  section  8,  if  it  be  shown  that  he  has  disposed  of, 
or  made  over  any  part  of  his  property  with  intent  to  injure  or  defraud  any  of 
his  creditors,  although  such  acts  were  committed  before  the  commencement  of 
the  action  on  which  he  is  imprisoned,  provided  they  are  shown  to  be  so  far 
connected  with  the  action,  as  to  be  the  grounds  upon  which  the  order  for  his 
imprisonment  was  based. 

It  is  not  necessary  that  it  should  be  shown  that  the  petitioner  was,  at  the  time  of 
the  application  for  a  discharge,  concealing  or  attempting  to  conceal  property, 
or  had  then  in  his  possession  or  under  his  control  any  property  or  rights  which 
he  then  secreted,  or  had  secreted,  in  contemplation  of  such  proceedings. 

APPEALS  by  two  opposing  judgment  creditors  from  the  order  of 
the  Special  Term  granting  to  the  petitioner  a  discharge  from 
imprisonment,  under  chapter  5,  title  1,  article  6  of  part  2  of  the 
Revised  Statutes. 

George  W.  Yon  Slyck  and  Freling  H.  Smith,  for  the  appellants. 
Thomas  M.  North  and  J.  Langdon  Ward,  for  the  respondent. 

DAVIS,  P.  J. : 

The  respondent  was  imprisoned  on  two  executions  issued  upon 
judgments  severally  recovered  by  the  appellants.  He  was  arrested 
in  each  of  the  actions  upon  orders  obtained  upon  affidavits  alleging 
that  he  had  disposed  of  his  property  with  intent  to  defraud  his 
creditors.  Motions  in  each  of  the  actions  to  vacate  such  orders  of 
arrest,  founded  upon  affidavits,  were  made  and  denied,  and  an  appeal 
was  taken  from  the  order  of  denial  in  one  of  such  motions,  which 
order  was  affirmed  by  the  General  Term.  (  Wheeler  v.  Brady,  2 
Hun,  347.)  The  application  for  discharge  was  made  under  title  1, 


488  MATTER  OF  BRADY. 

FIRST  DEPARTMENT,  OCTOBEU  TERM,  1876. 

chapter  5,  article  6  of  part  2  of  the  Revised  Statutes  (2  Rev.  Stat., 
p.  31  [Edm.  ed.]  ).  The  fifth  section  of  the  statute  under  which 
the  proceeding  is  presented  requires  that  an  affidavit  shall  be 
made,  indorsed  on  the  petition  and  sworn  to  by  the  applicant, 
stating  that  his  petition  and  the  account  of  his  estate,  and  of  the 
charges  thereon,  are  in  all  respects  just  and  true,  and  that  he  lias 
not,  at  any  time  or  in  any  manner,  disposed  of  or  made  over  any 
part  of  his  property  with  a  view  to  the  future  benefit  of  himself 
or  his  family,  or  with  an  intent  to  injure  or  defraud  any  of  his 
creditors.  The  eighth  section  of  the  same  statute  declares,  that 
"  unless  the  opposing  creditors  shall  be  able  to  satisfy  the  court  that 
the  proceedings  on  the  part  of  the  prisoner  are  not  just  and  fair, 
the  court  shall  order  an  assignment  as  aforesaid  and  grant  a  dis- 
charge as  hereinafter  directed. "  The  court  granted  the  order  of 
discharge.  The  grounds  upon  which  it  was  granted  appear  by  the 
opinion  of  the  learned  judge,  which  is  as  follows: 

"  DONOHUE,  J.  After  the  most  careful  examination  of  the  case,  it 
does  not  appear  to  me,  that  there  is  any  evidence  to  show  that  the 
defendant  has  in  his  possession  or  under  his  control  any  property  or 
rights  which  he  now  secretes,  or  has  secreted  in  contemplation  of  these 
proceedings.  His  assignment  carries  with  it  any  right  he  may 
have  to  all  his  property.  I  fully  agree  with  Judge  CLERKE,  in 
Matter  of  Latorie.  The  law  did  not  intend  a  perpetual  imprison- 
ment, if  it  appeared  that  the  defendant  was  now  concealing  or 
attempting  to  conceal  property,  the  imprisonment  might  continue 
until  he  did  justice,  but  it  does  not  appear  on  this  evidence,  that 
any  further  continuance  of  it  can  produce  any  result.  I  feel 
myself  bound  by  the  case  referred  to,  and  order  the  discharge  asked." 

This  opinion  shows  that  the  order  of  the  court  below  was 
granted,  because  the  opposing  creditors  failed  to  show  that  the 
petitioner  was  at  that  time  concealing  or  attempting  to  conceal 
property,  or  had  then  in  his  possession  or  under  his  control  any 
property  or  rights  which  he  then  secreted  or  had  secreted  in  con- 
templation of  these  proceedings.  We  think  this  was  altogether 
too  narrow  a  construction  of  the  statute  under  which  the  petition 
was  presented.  He  was  required  by  the  statute  to  swear  that  he 
had  not  at  any  time,  or  in  any  manner,  disposed  of  or  made  over 
%ny  part  of  his  property  with  a  view  to  the  future  benefit  of  him- 


MATTER  OF  BRADY.  439 

FIBST  DEPARTMENT,  OCTOBEB  TERM>  1876. 

self  or  his  family,  or  with  an  intent  to  injure  or  defraud  any  of  hia 
creditors.  (Sec.  5,  ubi  sup.)  We  think  if  the  opposing  creditors 
succeeded  in  establishing  that  this  part  of  the  affidavit  indorsed 
upon  the  petition  was  not  true,  they  thereby  showed  that  the  pro- 
ceedings of  the  prisoner  were  not  just  and  fair  within  the  meaning 
of  the  statute. 

Such  was  the  construction  of  the  statute  in  Gale  v.  Clark,  by 
DALY,  Ch.  J.  of  the  Common  Pleas,  in  an  opinion  reported  in  The 
New  York  Weekly  Digest  (vol.  1,  No.  10,  p.  209),  in  which  he  held 
that,  "  by  the  act  the  applicant  is  required  to  swear  that  he  has  not 
parted  with  or  made  over  any  part  of  his  property  with  intent  to 
defraud  any  of  his  creditors."  And  he  also  held  that  the  act  of  mort- 
gaging personal  property  to  a  brother  of  the  petitioner,  before  the 
commencement  of  the  action  in  which  he  was  imprisoned,  with  intent 
to  defraud  creditors,  was  a  proceeding  not  just  and  fair  within  the 
meaning  of  the  statute,  as  construed  by  the  court  in  the  case  of 
Watson  (2  E.  D.  Smith,  429).  It  is  not  reasonable  to  suppose  that 
the  legislature  would  require  an  imprisoned  debtor  to  take  the  oath 
above  set  forth,  and  at  the  same  time  provide  for  his  discharge, 
notwithstanding  it  should  be  shown  by  an  opposing  creditor  that 
such  oath  was  false,  because  it  was  not  also  shown  that  he  had  at  the 
time  of  the  hearing,  property  which  he  then  concealed,  or  because 
it  was  not  shown  that  he  had  secreted  his  property  with  a  view  to 
the  particular  proceeding  for  his  discharge.  The  intention  was  we 
think,  as  indicated  by  the  form  of  the  oath,  to  prevent  the  discharge 
of  a  debtor  who  has  been  guilty  of  the  acts  which  he  is  required 
to  negative  by  the  oath  prescribed  by  the  statute ;  and  that 
it  is  enough  to  show  that  the  proceedings  on  the  part  of  the 
prisoner  are  not  "  just  and  fair,"  if  the  creditor  establishes  on  the 
hearing  that  the  debtor  has  disposed  of  or  made  over  any  part  of 
his  property  with  intent  to  injure  or  defraud  any  of  his  creditors, 
although  such  acts  were  committed  before  the  commencement  of 
the  action  in  which  he  is  imprisoned,  provided  they  are  shown 
also  to  be  so  far  connected  with  the  action  as  to  be  the  grounds 
upon  which  the  order  for  his  imprisonment  therein  was  based. 

This  condition  of  things  was  shown  by  the  appellants  on  the  hear- 
ing of  this  case.  They  produced  the  affidavits  upon  which  the 
order  was  made,  and  those  made  upon  the  hearing  of  the  motion 


440  DOLAN  v.  MAYOR. 


FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 


to  discharge  the  orders,  which  showed  the  grounds  upon  which 
the  order  was  made,  to  wit,  the  disposing  of  the  property  with 
intent  to  defraud  creditors ,  and  they  proved  by  the  petitioner's  own 
examination  that  he  had  made  the  disposition  alleged  in  those 
papers,  of  his  property,  and  showed  other  transactions  relating 
thereto  which  we  think  the  court  below,  if  it  had  considered  these 
acts  as  within  the  statute,  would  undoubtedly  have  held  to  have 
been  fraudulent  as  to  his  creditors. 

The  order  of  the  court  below  was  therefore  erroneous  and  must 
be  reversed,  with  costs  of  the  appeal. 

DANIELS,  J.,  concurred. 

Order  reversed,  with  costs  of  appeal. 


MICHAEL  DOLAN,  PLAINTIFF,  v.  THE  MAYOR,  ETC.,  OF 
THE  CITY  OF  NEW  YORK,  DEFENDANTS. 

Salary  —  action  for,  by  one  unlawfully  kept  out  of  office  —  liability  of  city  for  payment. 

On  the  last  of  December,  1872,  the  plaintiff,  assistant  clerk  of  one  of  the  District 
Courts  of  New  York,  was  removed  from  that  office  by  the  justice  of  the  court 
and  one  Keeting  appointed  thereto,  who  thereafter  occupied  the  office  and 
discharged  the  duties  thereof  until  March,  1874,  when  the  plaintiff  was  restored 
oy  virtue  of  a  judgment  of  ouster  obtained  by  him.  The  salary  established  by 
law  was  paid  to  Keeting  from  January,  1873,  to  December,  1873;  that  due  for 
the  months  of  December,  1873,  and  January  and  February,  1874,  still  remained 
in  '.he  hands  of  the  defendant 

In  an  action  by  the  plaintiff  to  recover  the  salary  from  January,  1873,  to  March, 
1874,  Jteld,  that  he  was  only  entitled  to  recover  so  much  thereof  as  remained  in 
the  hands  of  the  defendant;  that  his  remedy  for  so  much  as  had  been  paid  to 
Keeting  was  against  the  party  who  committed  the  wrong  by  removing  and 
excluding  him  from  the  office. 

MOTION  for  a  new  trial  on  exceptions  ordered  to  be  heard  in  the 
first  instance  at  the  General  Term,  after  a  verdict  directed  in  favor 
of  the  plaintiff. 

Ndson  J.  Waterbury,  for  the  plaintiff. 
William  G.  Whitney,  for  the  defendant. 


DOLAN  v.  MAYOR.  44j 


FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 


DAVIS,  P.  J. : 

The  facts  of  this  case  are  as  follows :  The  plaintiff  on  the  24th 
day  of  May,  1872,  was  appointed  to  the  office  of  assistant  clerk  of  the 
Sixth  Judicial  District  Court  of  the  city,  by  THADDEUS  H.  LANE, 
justice  of  said  court.  He  entered  upon  and  performed  the  duties 
of  that  office,  up  to  and  including  the  last  day  of  December  1872. 
On  that  day,  Justice  LANE,  removed  the  plaintiff  from  said  office 
and  appointed  one  Francis  T.  Keeting  thereto.  On  the  1st  day 
of  January,  1873,  Keeting  entered  upon,  and  continued  to  occupy 
said  office,  and  perform  the  duties  thereof,  until  March  1st,  1874. 
On  the  1st  day  of  March,  1874,  the  plaintiff  again  came  in  posses- 
sion of  the  office  by  virtue  of  a  judgment  of  ouster  obtained  by  him 
against  said  Keeting,  in  an  action  of  quo  warranto.  The  salary  of 
the  office  was  paid  to  Keeting,  from  the  1st  day  of  January,  1873, 
to  the  first  day  of  December,  of  that  year.  The  salary  for  Decem- 
ber, 1873,  and  January  and  February,  1874,  has  not  been  paid  to 
any  person.  The  plaintiff,  while  Keeting  was  in  possession,  and 
performing  the  duties  of  the  office,  proffered  his  services  to  the 
clerk  of  the  court  from  time  to  time  which  were  refused.  The 
salary  of  the  office  was  fixed  at  $4,000  per  annum,  payable  in 
monthly  installments.  It  was  admitted  that  the  salary  for  the 
months  of  December,  1873,  and  January  and  February,  1874,  with 
interest,  amounted  to  $804.40.  Upon  these  facts  the  defendants' 
counsel  requested  the  court  to  direct  a  verdict  in  favor  of  the 
defendants.  The  court  refused  and  the  defendants'  counsel  duly 
excepted.  He  also  requested  that  judgment  be  directed  for  the 
plaintiff  for  $804.40,  which  was  refused  and  an  exception  duly 
taken.  The  court  then  directed  the  jury  to  render  a  verdict  in 
favor  of  the  plaintiff  for  the  whole  amount  of  the  salary  from  Jan- 
uary, 1873,  with  interest,  amounting  to  the  sum  of  $3,664.40. 
Defendants'  counsel  excepted  to  such  direction,  and  the  court 
directed  the  exceptions  to  be  heard  at  the  General  Term  in  the 
first  instance,  and  in  the  mean  time  suspended  the  judgment. 

The  question  whether  the  plaintiff  can  recover  for  the  period 
during  which  Keeting  was  in  possession  of  the  office,  under  the 
appointment  made  by  Justice  LANE,  and  performed  its  duties  and 
received  the  salary,  seems  to  be  disposed  of  by  the  cases  of 
Me  Veary  v.  The  Mayor  (1  Hun  [8  S.  C.  N.  Y.],  35),  and  Smith  v. 
HUN— VOT,  VIII.  56 


442  DOLAN  v.  MAYOR. 

FDMT  DEPABTMENT,  OCTOBEB  TKHM,  1876. 

The  Mayor  (37  N.  Y.,  518).  In  the  case  of  The  People  ex  rel. 
Dolan  v.  Lane  (55  N.  Y.,  217),  which  was  a  proceeding  by  mandamus 
instituted  by  the  present  plaintiff,  to  compel  Justice  LANE  to  make 
certificate  for  payment  of  his  salary  as  assistant  clerk,  the  court 
(RAPALLO,  J.),  said  :  "  The  relator  has  been  actually  excluded  from 
the  office  which  he  claimed,  and  another  person  installed  therein, 
who  has  ever  since  discharged  its  duties.  This  has  been  done  under 
color  of  law,  and  the  legality  of  the  removal  of  the  relator,  and  of 
the  appointment  of  the  present  incumbent,  depends  upon  the  cou- 
Btruction  of  a  statute,  framed  in  such  ambiguous  language,  as  to 
render  its  interpretation  difficult.  The  Special  and  General  Terms 
of  the  court  below,  have  differed  upon  the  question."  This  remark 
of  the  learned  judge  quite  justifies  us  in  holding  that  Keeting  was 
in  possession  of  the  office  under  color  of  law,  and  must  be  regarded 
as  an  officer  de  facto.  The  exclusion  of  the  plaintiff  in  this  case, 
from  the  office,  was  not  an  act  of  the  defendants  nor  of  persons 
under  their  control,  and  it  was  not  the  duty  of  the  defendants  before 
paying  the  salary  to  Keeting,  to  test  by  legal  proceedings  the 
validity  of  his  appointment.  They  found  him  in  possession  of 
the  office  and  performing  its  duties  by  an  appointment  made 
under  color  of  law  ;  and  under  the  principles  laid  down  in  the  casts 
above  cited,  they  were  justified  in  paying  to  him  the  salary  per- 
taining to  the  office.  The  remedy  of  the  plaintiff,  so  far  as  respects 
the  salary  thus  paid,  must  be  against  the  party  who  committed  the 
wrong  by  his  removal  and  exclusion. 

In  respect  to  the  three  months  for  which  no  payment  has  been 
made  by  the  city,  a  different  rule  may  properly  be  applied.  The 
title  to  the  office  has  now  been  adjudicated  by  a  direct  proceeding 
for  that  purpose  to  which  the  defendants  were  parties.  The  pay- 
ment to  Keeting  now  made,  would  be  with  notice  that  he  was  an 
usurper  without  legal  title  to  the  office,  and  it  is  clear  that  Keeting 
can  maintain  no  proceeding  against  the  city  to  enforce  such  pay- 
ment. We  are  of  opinion,  therefore,  that  the  plaintiff  is  legally 
entitled  to  the  salary  remaining  unpaid.  The  verdict  should  have 
been  for  the  sum  admitted  on  the  trial  to  be  due  and  unpaid  for 
the  months  of  December,  January  and  February,  amounting,  with 
interest  as  admitted,  to  $804.40. 

The  motion  for  new  trial  must  therefore  be  granted,  with  coste 


DREW  v.  MAYOR.  443 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

to  abide  event,  unless  plaintiff  stipulate  to  reduce  the  verdict  to 
$804.40,  with  costs  ;  in  which  case  the  motion  will  be  denied  with- 
out costs  to  either  party. 

DANIELS,  J.,  concurred. 

Motion  for  new  trial  granted  with  costs  to  abide  event,  unless 
plaintiff  stipulate  to  reduce  verdict  to  $804.40,  with  costs,  in  which 
case  motion  denied  without  costs  to  either  party. 


PATRICK  H.  DREW,  PLAINTIFF,  v.  THE  MAYOR,  ETC.,  OF 
THE  CITY  OF  NEW   YORK,  DEFENDANTS. 

Receipt  —  ignorance  of  its  contents  —  acts  of  recevptor  inconsistent  with  knowledgt 
thereof — evidence — action  for  »aLary. 

The  plaintiff  was  formerly  employed  to  sweep  the  markets  in  the  city  of  New 
York,  at  sixty  dollars  per  month.  Subsequently,  the  comptroller  reduced  the 
pay  to  fifty  dollars  per  mouth.  This  action  was  brought  by  the  plaintiff  to 
recover  the  difference,  to  which  he  claims  to  be  entitled.  Upon  the  trial, 
pay  rolls  signed  by  the  plaintiff,  by  making  his  mark,  were  put  in  evidence, 
which  stated  that  the  wages  were  $600  per  annum,  and  containing  a  receipt  in 
full  payment  of  all  services  rendered.  Plaintiff  offered  to  show  that  at  the  time 
of  signing  the  pay  rolls  a  suit  was  pending,  brought  by  him  to  recover  the 
additional  ten  dollars  per  month  for  services  previously  rendered,  in  order  to 
show  that  he  was  not  aware  of,  and  did  not  assent  to  the  statements  contained 
in  the  pay  rolls.  Held,  that  the  evidence  was  properly  rejected.  (BRADY,  J., 
dissenting.) 

MOTION  for  a  new  trial  on  exceptions  ordered  to  be  heard  in  the 
first  instance  at  the  General  Term,  after  a  verdict  in  favor  of  the 
defendants  directed  by  the  court. 

This  action  was  brought  to  recover  the  amount  of  certain  balances 
claimed  to  be  due  on  account  of  the  monthly  wages  of  the  plaintiff, 
as  sweeper  in  the  public  markets  of  the  city  of  New  York.  The 
rate  of  wages  originally  fixed  by  ordinance  or  resolution  of  defend- 
ants was  sixty  dollars  per  month.  Plaintiff  received  sixty  dollars 
per  month  for  such  services  from  defendants  up  to  the  time  when 
the  claim  in  this  action  begins,  November  1,  1872,  part  of  such 
amount,  however,  being  collected  by  suit  against  the  city,  which 
would  appear  from  the  case  to  be  the  suit  of  which  the  plain 


444  DREW  v,  MAYOR. 


FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 


tiff,  as  hereinafter  stated,  offered  to  show  the  pendency.  From 
that  time  and  during  all  the  time  mentioned  in  the  complaint,  the 
plaintiff  was  paid  only  fifty  dollars  a  month  for  the  same  services,  and 
at  the  time  of  each  payment  he  signed  a  pay  roll  containing  a  receipt 
in  full  in  the  following  form :  "  Received  from  Andrew  H.  Green, 
comptroller,  the  sum  hereunder  placed  opposite  my  name,  in  full 
payment  for  services  rendered  by  me  in  the  capacity  and  for  the 
period  embraced  in  this  pay  roll."  At  the  foot  of  the  receipt  was 
stated :  "  Rate  per  an.,  $600.  Amount,  $50."  Defendants  denied 
that  there  was  any  more  due  plaintiff  for  such  services  than  had  been 
paid,  and  allege  that  the  plaintiff  agreed  to  take  fifty  dollars  a 
month  for  such  services.  For  the  purpose  of  showing  that  the 
plaintiff  did  not  agree  to  receive  fifty  dollars  a  month,  plaintiff 
offered  to  prove  that  during  the  time  covered  by  the  complaint,  he 
had  a  suit  pending  against  the  defendant  to  recover  a  like  balance  - 
of  wages,  accrued  prior  to  November,  1872.  The  cause  was  tried 
at  Supreme  Court  Circuit,  and  the  court  directed  the  jury  to  find 
a  verdict  for  the  defendants,  to  which  direction  the  plaintiff  then 
excepted.  The  court  also  directed  that  the  exceptions  be  heard  in 
the  first  instance  at  the  General  Term,  and  that  judgment  in  the 
mean  time  be  suspended. 

Henry  Parsons,  for  the  plaintiff.  The  legal  right  of  plaintiff  to 
the  balance,  ten  dollars  a  month,  existed  at  the  end  of  each  month, 
and  the  same  could  only  be  extinguished  by  payment  or  by  a  tech- 
nical release  under  seal.  (Ryan  v.  Ward,  48  N.  Y.,  204: ;  Seymour 
v.  Minturn,  17  Johns.,  169 ;  Mechanics'  Bank  v.  Hazard,  13  id., 
353  ;  Blum  v.  Hartman,  3  Daly,  47 ;  McKnight  v.  Dunlop,  1 
SeJd.  [5  N.  Y.],  537 ;  Acker  v.  Phoenix,  4  Paige,  305  ;  Cumber  v. 
Wane,  \  Smith's  Leading  Cases,  p.  439,  and  notes.)  A  receipt  in 
full  of  a  sum  less  than  the  amount  due,  in  no  way  discharges  the 
right  to  recover  the  balance,  and  cannot  be  construed  as  a  contract 
to  accept  a  less  sum  thereafter :  it  is  merely  a  declaration  of  a  fact. 
(Ryan  v.  Ward,  48  N.  Y.,  204;  McDougal  v.  Cooper,  31  id., 
498 ;  Hendricksen  v.  Beers,  6  Bosw.,  639  ;  1  Greenl.  Ev.,  §  212 ; 
J)ederick  v.  Lemon,  9  Johns.,  333;  Williams  v.  Carrington,  1 
Hilt,  515;  Seymour  v.  Minturn,  17  Johns.,  169;  Mechanics'  Bank 
v.  Hazard,  13  id.,  353  ;  Cumber  v.  Wane,  1  Smith's  Leading  Cases* 


DREW  v.  MAYOit.  445 


FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 


p.  439,  and  notes ;  Geary  v.  Page,  9  Bosw.,  290.)  The  receipt  can 
be  explained  or  controverted.  (Buswell  v.  Pioneer,  37  N.  T.,  312 ; 
Filkins  v.  Wayland,  24  id.,  338  ;  McDougal  v.  Cooper,  31  id.,  498 ; 
Coon  v.  Knapp,  4  Seld.,  402 ;  Kellogg  v.  .Richards.  17  Wend.,  116 ; 
Tobey  v.  Barber,  5  Johns.,  68.) 

James  C.  Carter,  for  the  defendants. 

DAVIS,  P.  J. : 

The  court  below  committed  no  error  in  directing  a  verdict  tor 
the  defendant.  The  plaintiff  proved  no  express  contract  to  pay 
him  sixty  dollars  per  month  for  his  services  as  street-sweeper.  He 
proved  that  in  1866  the  common  council  passed  a  resolution  fixing 
the  compensation  of  sweepers  employed  in  the  markets  at  sixty 
dollars  per  month,  and  that  in  1867  the  then  comptroller,  Couolly, 
directed  him  to  go  to  work  as  such  sweeper,  and  that  he  was  paid, 
for  a  certain  period,  at  the  rate  of  sixty  dollars  per  month.  This 
showed  an  implied  contract  to  pay  him  at  that  rate.  But  the  plain- 
tiff further  showed  that  he  was  subsequently  paid  at  the  rate  of 
fifty  dollars  per  month,  and  that,  from  month  to  mouth,  for  the 
whole  period  covered  by  his  claim  in  this  suit,  he  signed  monthly 
receipts  contained  in  the  pay  roll  of  the  bureau  of  markets,  in 
which  his  wages  were  set  down  at  $600  per  annum  for  his  services 
as  sweeper,  and  acknowledging  the  receipt  from  the  comptroller  of 
fifty  dollars  in  full  payment  for  services  rendered  by  him  in  the 
capacity  of  sweeper  for  the  period  of  the  month  embraced  in  each 
pay  roll.  This  certainly  overcame  the  presumption  of  a  contract 
to  pay  sixty  dollars  for  the  same  period,  and  showed,  by  strong 
inference  at  least,  a  contract  for  fifty  dollars  per  month,  or,  rather, 
at  $600  per  annum,  payable  monthly.  The  plaintiff  was  an  illiter- 
ate man,  and  signed  the  pay  roll  by  making  his  mark,  but  he  knew 
what  amount  of  money  he  got,  and  that  he  gave  a  monthly  receipt, 
and  he  made  no  demand  for  more,  but  went  on  working,  and 
receiving  that  sum,  and  signing  such  receipts  during  the  whole 
eeveral  months  covered  by  his  complaint.  His  assent  to  the  price 
and  terms  must  be  assumed,  under  such  a  state  of  facts,  on  the  pro- 
duction of  monthly  receipts  in  full,  each  stating  the  rate  of  com- 
pensation per  year,  and  the  amount  per  month  at  such  rate.  The 


446  DREW  v.  MAYOR. 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

court  was  clearly  right  in  directing  a  verdict  upon  such  a  state  oi 
facts. 

The  only  other  question  is  upon  an  exception  to  the  exclusion 
of  evidence.  The  plaintiff  offered  to  show  that  during  the  time 
covered  by  the  complaint  he  had  a  suit  pending  against  defendant 
to  recover  a  like  balance  of  wages  accruing  prior  to  November, 
1872. 

This  evidence  was  rightly  rejected.  It  did  not  change  the  con- 
tents of  the  receipts  given,  nor  tend  to  show  that  plaintiff  acted 
under  any  mistake  as  to  what  he  was  doing  in  giving  monthly 
receipts  in  full.  On  the  contrary,  it  would  tend  to  show  that  there 
was  a  dispute  pending  as  to  the  amount  of  his  claim,  in  full  knowl- 
edge of  which  he  gave  and  continued  to  sign  and  give  the  receipts 
in  full  at  fifty  dollars  per  month,  and  in  that  view  he  should  be 
regarded  as  adjusting  a  disputed  claim  on  the  terms  expressed  in 
the  pay  roll  and  receipt. 

His  own  previous  declaration  that  he  demanded  a  balance  for 
former  services  was  not  competent,  and  that  was  all  the  fact  that 
he  had  a  suit  pending  for  such  services  tended  to  prove  in  his 
behalf.  His  declaration  touching  such  service  was  not  admissible 
to  counteract  the  effect  of  his  receipts,  or  overcome  the  presump- 
tions that  legally  arise  from  his  subsequent  transactions. 

There  are,  in  my  opinion,  no  grounds  for  a  new  trial,  and  the 
motion  must  be  denied,  with  costs. 

DANIELS,  J. : 

I  think  that  the  exclusion  of  the  evidence  offered,  to  show  that 
plaintiff  had  another  action  pending  for  a  similar  claim  accruing 
before  November,  1872,  was  proper. 

If  he  made  no  agreement  to  receive  sixty  dollars  a  month  he 
should  have  offered  proof  of  that  fact.  The  acceptance  and  receipt 
for  the  amount  was  strong  evidence  to  the  contrary.  It  was  the 
adjustment  of  a  disputed  claim  and  for  that  reason  binding. 

A  new  trial  should  be  denied. 

BBADT,  J.  (dissenting): 

This  action  was  brought  to  recover  balances  claimed  to  be  due 
on  account  of  the  monthly  wages  of  the  plaintiff,  as  a  sweeper  10 
the  public  markets  of  the  city  of  New  York. 


BREW  v.  MAYOR,  447 

FIBST  DBPABTMBNT,  OCTOBER  TEBM,  1876. 

The  common  council,  by  resolution  approved  March  20th,  1866, 
declared  the  compensation  of  these  sweepers  to  be  at  the  rate  of 
sixty  dollars  per  month,  and  that  sura  was  paid  up  to  the  1st 
November,  1872,  and  until  December  24,  1873,  when  fifty  dollars 
only  was  paid,  although  no  change  had  been  made  in  the  rate  of 
compensation  thus  established  by  the  resolution  mentioned. 

On  the  day  last  mentioned,  namely,  the  24th  December,  1873, 
the  comptroller,  by  virtue  of  the  authority  conferred  by  section  28 
of  chapter  335  of  the  Laws  of  1873,  fixed  the  compensation  at 
$600  per  annum,  fifty  dollars  per  month.  When  the  payment  was 
made  on  the  first  of  November,  and  at  all  payments  subsequent 
thereto,  the  plaintiff  signed  a  pay  roll  in  which  the  rate  per  annum 
was  stated  to  be  $600,  and  which  contained  a  statement  that  it  was 
received  in  full  payment  for  services  rendered  in  the  capacity  and 
for  the  period  embraced  in  the  pay  roll.  The  roll  was  signed  by 
the  plaintiff  by  making  his  mark,  from  which  it  is  to  be  presumed 
that  he  could  not  write  his  name.  It  did  not  appear  whether  he 
could  read  or  not,  or  whether  he  had  in  any  way  been  advised  ,>f 
the  contents  of  the  paper  he  signed  beyond  its  being  a  receipt  for 
the  money  given  him.  In  answer  to  this  evidence  the  plaintiff 
offered  to  prove,  that  during  the  time  covered  by  the  complaint, 
and  at  the  time  when  the  plaintiff  was  reappointed  by  Comptroller 
Green,  in  February,  1873,  he  had  a  suit  pending  against  the  defend- 
ant to  recover  a  like  balance  of  wages  accruing  prior  to  November, 
1 872,  and  stated  that  such  evidence  was  intended  to  show  that  plaintiff 
had  not  and  did  not  agree  to  receive  fifty  dollars  per  month  as  a  settle- 
ment of  all  claims  against  the  city  for  sucn  services,  or  to  accept 
that  sum  in  the  future,  which  was  objected  to  and  it  was  excluded. 
The  pay  roll,  as  a  receipt,  was  not  conclusive  upon  the  plaintiff. 
He  had  the  right  to  controvert  or  explain  it  (Ryan  v.  Ward  et  al., 
48  N.  Y.,  204) ;  but  it  would  seem  to  be  more  than  a  receipt 
because  it  contains  a  statement  that  the  rate  of  compensation  per 
annum  is  $600  and  the  plaintiff  could,  if  he  chose  to  do  so,  agree 
to  render  the  services  performed  by  him  for  that  sum.  He  was 
unlettered  however,  and  there  is  no  proof  on  behalf  of  the  defend- 
ants that  he  knew  of  the  contents  of  the  paper,  as  already  suggested, 
beyond  its  statement  as  a  receipt  for  money  paid,  while  on  the 
other  hand  the  offer  rejected  tended  to  show  that  he  did  not  intend 


448  DREW  v.  MAYOR. 


FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 


to  execute  a  contract  but  a  receipt.  In  either  point  of  view  it 
was  error  therefore,  to  reject  the  evidence  thus  offered.  If  a  con- 
tract be  incorporated  in  a  receipt,  especially  when  the  person 
signing  it  is  unlettered,  it  is  or  it  should  be  incumbent  on  the  party 
seeking  to  maintain  it,  to  prove  that  it  was  so  understood,  other- 
wise undue  advantage  might  be  taken  or  frauds  perpetrated,  which 
the  laws  are  careful  to  guard  against.  If  the  plaintiff  had  an  action 
pending  against  the  defendant  to  recover  a  like  balance  of  wages 
prior  to  November,  1872,  and  at  the  time  he  was  reappointed  by 
Comptroller  Green,  it  would  be  a  strong  circumstance,  not  only 
explanatory  of  the  pay  rolls  as  receipts,  but  in  favor  of  the  plain- 
tiff's ignorance  of  any  contract  contained  in  them  to  do  his  work 
for  less  than  fifty  dollars  per  month,  which  had  been  paid  him, 
and  which  he  was  entitled  to  receive  under  the  resolution  mentioned. 

The  right  of  the  comptroller  to  make  a  more  favorable  contract 
for  the  city  cannot  be  doubted,  but  the  evidence  that  it  was  done 
should  be  of  such  strength  as  to  warrant  the  inference  that  it  was 
understand! ngly  made,  and  if  such  an  issue  was  presented  all  testi- 
mony having  a  legitimate  bearing  on  the  subject  should  have  been 
admitted  and  the  question  determined. 

Whether,  in  fact,  any  such  contract  was  made,  and,  indeed, 
whether  it  was  contended  on  the  part  of  the  defendant  to  have 
been  made,  does  not  distinctly  appear.  The  paper  signed  by  the 
plaintiff  was,  in  its  general  characteristics,  a  receipt  only,  and  was 
apparently  regarded  as  such  on  the  trial,  and  if  so,  the  explana- 
tory evidence  could  not  be  rejected,  as  already  shown. 

A  new  trial  must  be  therefore  ordered,  when  the  issues,  what- 
ever they  may  be,  can  be  fully  examined  and  disposed  of,  because 
unless  a  different  contract  was  made  the  plaintiff  was  clearly 
entitled  to  the  compensation  which  the  defendants  declared  by 
resolution  should  be  his,  and  which  was  notice  to  all  the  employe* 
named  or  to  be  selected. 

New  trial  ordered,  with  costs  to  abide  event. 

Motion  denied,  with  costs. 


MoPARLIN  v.  BOYNTON.  449 

Fraar  DEPARTMENT,  OCTOBBB  TERM,  1876. 


MICHAEL  McPARLIN  AND  OTHERS,  RESPONDENTS,  v.  EBEN  M. 
BOYNTOISr,  APPELLANT. 

Warranty  —  Inspection  of  goods  before  delivery  —  effect  of —  Penalty. 

Where  parties  stipulate  that  articles  to  be  manufactured  shall  be  of  a  particular 
kind  and  quality,  and  at  the  same  time  stipulate  that  they  shall  be  tested  by 
some  person  selected  by  the  purchaser  before  delivery,  to  ascertain  whether  the;* 
are  of  the  specified  kind  and  quality,  and  such  test  is  in  fact  made  by  him, 
and  the  goods  are  thereupon  delivered  and  accepted,  there  is,  in  the  absence  of 
fraud  and  collusion  between  the  manufacturer  and  the  person  selected  to  test 
the  goods,  no  remedy  by  action  upon  the  contract,  even  though  the  goods,  or 
some  portion  of  them,  are  subsequently  ascertained  not  to  be  equal  to  the 
warranty. 

The  plaintiff  agreed,  in  writing,  to  manufacture  for  the  defendant  certain  saws  of 
the  "best  cut  steel,  hardened  and  tempered,  carefully  ground  to  three  gauges 
thin  on  back  and  filed,  set  and  warranted  best  in  every  particular.  The  saws 
to  be  tested  by  your  man  employed  for  the  purpose  of  filing  and  finishing 
same."  Held,  that  the  defendant  having  appointed  a  man  to  test  the  saws  in 
pursuance  of  the  contract  was  bound  by  his  decision,  and  could  not  thereafter 
set  up  a  breach  of  the  warranty  as  a  defense  to  an  action  for  the  purchase-price. 

The  contract  further  provided,  that  "  all  saws  not  taken  by  you  in  sixty  days  from 
completion  of  their  manufacture  we  shall  charge  thereon  interest  at  the  rate  of 
ten  (10)  per  cent  per  annum."  Held,  that  this  meant  that  if,  for  any  reason, 
defendant  was  not  in  readiness  to  receive  the  saws  within  sixty  days,  and  their 
delivery  was  thereby  postponed  beyond  that  period,  he  should  pay  ten  per  cent 
for  the  period  that  might  elapse  between  the  expiration  of  sixty  days  from 
manufacture  and  the  time  of  delivery. 

APPEAL  from  a  judgment  in  favor  of  the  plaintiff  entered  upon 
the  report  of  a  referee. 

Erastus  New,  for  the  appellant.  A  vendee,  in  an  executory  con 
tract  of  sale,  with  an  express  warranty  as  to  the  quality  of  the  arti- 
cle contracted  for,  upon  receipt  of  the  article  and  subsequent  dis- 
covery of  a  defect  covered  by  the  warranty,  is  not  bound  to  return 
or  offer  to  return  the  article,  but  may  retain  and  use  it,  and  have 
his  remedy  on  the  warranty.  (Dounce  v.  Dow,  57  N.  Y.,  16  ; 
Park  et  al.  v.  Morris  Axe,  etc.,  Co.,  54  id.,  586 ;  Day  v.  Pool,  52 
id.,  416  ;  Foote  v.  Bentley,  44  id.,  166  ;  Muller  v.  Eno,  14  id.,  598  ; 
Hoe  v.  Sanborn,  21  id.,  553.)  It  seems  to  be  the  settled  law  in  this 
HUN— VOL.  VIII.  57 


450  McPARLIN  y.  BOYNTON. 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

State,  that  where  there  is  an  express  warranty,  and  no  fraud,  the 
vendee  cannot  rescind  and  return  the  property,  but  his  only  remedy 
is  on  the  warranty.  (Park  v.  Morris  Tool  Co.,  54  N.  Y.,  587; 
Day  v.  Pod,  52  id.,  416 ;  Reed  v.  Randall,  29  id.,  358 ;  Mutter 
v.  Eno,  14  id.,  597.)  The  rule  which  excepts  a  patent  defect  from 
the  operation  of  a  general  warranty  does  not  apply  where  the  war- 
ranty is  specific,  nor  where  the  article  sold  is  not  in  existence,  and 
cannot  be  seen  by  the  vendee  at  the  time  of  making  the  agreement 
of  warranty.  (Dounce  v.  Dow,  57  N.  Y.,  16 ;  Park  v.  Morris 
Tool  Co.,  54  id.,  586 ;  Day  v.  Pool,  52  id.,  416 ;  Foote  v.  Bentley, 
44  id.,  166  ;  Mutter  v.  Eno,  14  id.,  598  ;  Chatfield  v.  Frost,  3  K 
Y.  S.  C.,  359  ;  Birdseye  v.  Frost,  34  Barb.,  367 ;  Chitty  on  Cont, 
[llth  Am.  ed.,  vol.  1],  644 ;  Benjamin  on  Sales,  535  ;  Parsons  on 
Cont,  voL  1,  576,  n.  A.) 

C.  Bainbridge  Smith,  for  the  respondents. 

DAVIS,  P.  J. : 

This  is  an  action  to  recover  a  portion  of  the  price  agreed  to  be 
paid  for  a  large  number  of  saws  manufactured  by  the  plaintiffs  for 
the  defendant  in  the  years  1867  and  1868.  There  is  substantially 
HO  dispute  in  the  case  as  to  the  quantity  manufactured,  the  price 
to  be  paid,  nor  as  to  the  delivery  of  the  saws,  nor  do  we  think 
there  is  any  question  left  for  our  consideration  after  the  findings 
of  the  referee  upon  the  conflicting  evidence  touching  any  of  the 
saws  except  those  manufactured  under  an  agreement  in  writing 
bearing  date  July  1st,  1867.  That  agreement  is  contained  in  a 
letter  written  by  the  plaintiff  to  the  defendant,  and  is  in  the  fol- 
lowing words : 

July  1st,  1867. 
E.  M.  BOYNTON,  Esq. : 

DEAB  SIB. —  We  enter  your  order  of  this  date  for  1006  cross-cut 
saws  of  your  patent,  viz. :  100—6,  100— 6^,  400—7, 100— 7^,  6— S 
feet,  at  seventy  cents  per  foot  to  7  feet,  all  over  7  feet  to  8  feet,  5 
per  cent  advance.  Boxing  and  dray  added,  payable  within  sixty 
days  of  each  invoice  delivered  at  Hamilton,  O.,  then  shipped  as 
directed  by  you.  These  saws  are  to  be  made  of  Wm.  Jessop  & 
Son's  best  cross-cut  steel,  hardened  and  tempered,  carefully  ground 


McPARLIN  v.  BOYNTON.  451 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

tu  three  gauges  thin  on  back,  and  filed,  set,  and  warranted  best  in 
every  particular.  The  saws  to  be  tested  by  your  man  employed 
for  the  purpose  of  filing  and  finishing  same,  we  to  furnish  room 
and  bench  for  his  use  at  our  shop  free,  you  to  furnish  him  the 
necessary  tools  for  his  work,  and  in  case  of  your  absence  will  act 
for  you  in  the  payment  of  his  wages  from  any  moneys  you  may 
send  us  at  the  rate  of  $2.50  per  day.  And  all  saws  not  taken  by 
you  in  sixty  days  from  completion  of  their  manufacture  we  shall 
charge  thereon  interest  at  the  rate  of  ten  per  cent  per  annum. 

Truly  yours, 

WOODROUGH  &  MoPARLIN. 

The  plaintiffs  manufactured  and  delivered  to  the  defendant  the 
number  of  saws  of  the  sizes  and  kinds  required  by  this  contract. 
The  evidence  tends  to  show  and  there  can  be  little  doubt  that  a 
very  considerable  number  of  the  saws  so  manufactured  turned  out 
to  be  badly  tempered,  and  in  consequence  soft  and  useless  for  the 
purpose  for  which  they  were  intended.  Many  of  them  were  after- 
wards retempered  by  the  plaintiffs  at  the  expense  of  the  parties 
from  whom  they  were  received,  or  of  defendant,  and  many  others 
remained  on  hand  undisposed  of  which  were  not  retempered.  The 
question  as  to  the  kind  and  quality  of  the  steel  of  which  these  saws 
were  manufactured,  on  which  the  evidence  was  conflicting  but 
decidedly  preponderating  in  favor  of  the  plaintiffs,  was  disposed  of 
favorably  to  plaintiffs,  and  as  we  think  properly,  by  the  referee. 
There  can  be  no  doubt  that  the  contract  contains  an  express  war- 
ranty of  the  saws,  upon  which  the  defendant  would  in  the  absence 
of  other  provisions  in  the  contract  be  entitled  to  a  recoupment  of 
damages  in  this  action.  The  warranty  is  in  these  words  :  "  These 
saws  are  to  be  made  of  William  Jessop  &  Son's  best  cross-cut  steel, 
hardened  and  tempered  carefully,  ground  to  three  gauges  thin  on 
back,  and  filed,  set,  and  warranted  best  in  every  particular." 

It  is  claimed  by  the  defendant  that  this  warranty^  was  broken  in 
three  particulars :  First,  as  to  the  kind  of  steel  used  ;  second, 
as  to  the  hardening  and  tempering  of  the  saws ;  and,  third,  as  to 
their  being  ground  to  three  gauges  thin  on  the  back. 

The  first  of  these  was  disposed  of  by  the  finding  of  the  referee 
above  referred  to.  None  of  them  however,  can  be  disposed  of  by 


452  McPARLIN  v.  BOYNTON. 

FIBST  DEPARTMENT,  OCTOBER  TERM,  1876. 

the  mere  fact  that  the  defendant  received  and  sold  or  used  the 
saws.  He  had  the  right  to  receive  them  relying  upon  the  warranty, 
and  relying  upon  hie  remedy  for  its  breach  it'  it  turned  out  that 
the  warranty  was  broken.  (Dounce  v.  Dow,  57  N.  Y.,  16 ;  Parks 
v.  Morris  Ax  Go,  54  id.,  586  ;  Day  v.  Pool,  52  id.,  416  ;  and 
cases  cited  by  these  authorities.)  Nor  can  the  plaintiffs  escape 
responsibility  on  the  ground  that  the  defect  in  temper  and  in 
thickness  were  easily  discoverable  by  experienced  persons  by  the 
use  of  proper  instruments  or  appliances.  These  were  not  of  the 
character  of  patent  defects  to  which  warranties  are  not  applicable. 
The  defendant  is  therefore  entitled  to  a  new  trial  in  this  case 
unless  he  is  precluded  from  asserting  the  warranty  by  certain  other 
provisions  of  the  contract.  Immediately  following  the  warranty 
above  quoted,  the  contract  contains  these  words :  "  The  saws  to  be 
tested  by  your  man  employed  for  the  purpose  of  filing  and  finish- 
ing same,  we  to  furnish  a  room  and  bench  for  his  use  at  our  shop, 
free,  you  to  furnish  him  the  necessary  tools  for  his  work."  This 
raises  the  question  whether  the  parties  have  not,  by  the  express 
terms  of  the  contract,  provided  a  means  for  determining  before 
delivery  whether  or  not  the  saws  to  be  manufactured  were  of  the 
kind  required  by  the  contract  in  conformity  to  the  warranty.  It 
was  very  clearly  in  their  power  to  make  such  an  arrangement ;  and 
where  parties  stipulate  that  articles  to  be  manufactured  shall  be  of 
a  particular  kind  and  quality,  and  at  the  same  time  stipulate  that 
they  shall  be  tested  by  some  person  selected  by  the  purchaser  before 
deliver}7  to  ascertain  whether  they  are  of  the  specified  kind  and 
quality,  and  such  test  is  in  fact  made  by  him,  and  the  goods  are 
thereupon  delivered  and  accepted,  no  remedy  by  action  can  be  had 
upon  the  contract,  although  the  goods,  or  some  portion  of  them, 
are  subsequently  ascertained  not  to  be  equal  to  the  warranty.  In 
the  absence  of  fraud  and  of  collusion  between  the  manufacturer 
and  the  person  selected,  his  decision  upon  the  test  that  the  articles 
are  such  as  the  contract  requires,  is  conclusive  against  the  purchaser 
who  subsequently  receives  them.  The  evidence  shows  that  the 
defendant  sent  to  the  shop  of  the  plaintiffs  a  person  of  the  name 
of  Carlisle,  to  act  on  his  behalf  under  the  contract ;  that  he  was 
furnished  with  a  room  and  bench  for  his  use  in  the  shop  of  plain- 
tiffs, and  such  tools  as  were  used  by  him  were  furnished  by  defend 


McPARLIN  v.  BOYNTON.  453 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

ant ;  that  he  remained  while  the  saws  were  being  manufactured, 
and  that  they  were  sent  to  his  room  where  he  applied  or  was  at 
liberty  to  apply  such  tests  as  he  chose  in  respect  to  them.  There 
is  conflicting  evidence  in  the  case  as  to  whether  or  not  he  had  access 
to  the  tempering  room  of  the  plaintiffs,  and  gave  directions  in 
respect  to  the  tempering  of  the  saws,  but  on  that  question  the  evi- 
dence strongly  tends  to  show  that  he  had  the  fullest  opportunities, 
and  did  give  directions  in  relation  to  the  tempering,  and  that  the 
eaws  all  passed  through  his  hands  as  they  were  manufactured,  and  that 
some  of  them  were  pronounced  by  him  too  soft  and  were  returned 
to  the  tempering  room  and  again  brought  to  his  room  for  sucL 
further  process  of  tiling  and  finishing  as  he  chose  to  apply.  Under 
this  state  of  facts,  we  think  the  referee  was  right  in  holding  that  the 
delivery  of  the  saws  and  their  acceptance  by  the  plaintiffs,  after  the 
action  of  Carlisle  in  respect  thereto,  was  a  complete  performance 
of  the  contract,  and  that  no  recoupment  could  be  hud  under  the 
warranty.  It  would  seem,  from  some  of  the  testimony  given,  that 
the  defendant  supposed  that  all  the  duty  Carlisle  was  to  perform 
under  the  contract  related  to  filing  and  finishing  the  saws  as  they 
were  delivered,  from  time  to  time,  into  his  hands  ;  but  the  contract 
was  in  writing.  The  language  is  plain,  and  its  construction  must  be 
determined  by  what  the  writing  contains.  It  says,  "  the  saws  are  to 
be  tested  by  your  man  employed  for  the  purpose  of  filing  and  finish- 
ing same."  All  that  is  said  in  respect  to  filing  and  finishing  has  only 
the  effect  of  indicating  that  the  man  employed  for  that  purpose  shall 
be  the  person  who  is  to  test  the  saws.  For  that  person  the  plain- 
tiffs were  bound  to  furnish  a  room  and  bench  in  their  shop  free  of 
charge,  the  defendant  to  furnish  him  necessary  tools  for  his  work, 
which  work  embraces  both  the  testing,  and  the  filing  and  finishing 
of  the  saws.  We  think  the  language  is  hardly  capable  of  another 
construction.  The  defendant  had  the  privilege  of  selecting  any 
person  he  chose.  It  was  both  his  interest  and  duty  to  select  an 
entirely  competent  and  skillful  man.  If  he  tailed  to  do  that  it  was 
his  misfortune  or  neglect.  There  can  be  no  doubt  that  the  defend- 
ant was  not  bound  to  take  any  of  the  saws  rejected  by  the  person 
he  employed  for  not  coming  up  to  the  requirements  of  the  contract 
in  any  respect.  It  is  more  than  probable  that  the  defendant  selected 
an  incompetent  man,  but  as  all  the  saws,  as  they  were  made,  were 


454  McPARLIN  v.  BOYNTON. 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

delivered  into  his  bauds  and  passed  upon  by  him,  and  subsequently 
delivered  to  the  defendant,  no  remedy  remained  for  lack  of  coin 
pliance  with  the  contract,  unless  on  some  ground  of  fraud,  which  is 
not  alleged.  The  result  of  this  view  of  the  contract  is,  that  the 
conclusion  of  the  referee  as  to  the  liability  of  the  defendant  for  the 
saws  manufactured  is  correct ;  and  his  finding  that  the  defects  were 
readily  discoverable  by  the  use  of  certain  appliances,  becomes 
immaterial. 

The  referee  has  found  a  balance  due  from  the  defendant  to  the 
plaintiff  of  $1,705.24,  with  interest  thereon  at  the  rate  of  ten  per 
cent  from  the  17th  of  November,  1868.  He  bases  the  right  to 
recover  interest  at  the  rate  of  ten  per  cent  upon  this  clause  of  the 
contract :  "  And  all  the  saws  not  taken  by  you  in  sixty  days  from 
completion  of  their  manufacture,  we  shall  charge  thereon  interest 
at  the  rate  of  ten  per  cent  per  annum."  The  previous  clause  of 
the  contract  provides  that  the  price  of  the  saws,  adding  boxing  and 
drayage,  shall  be  payable  within  sixty  days  of  each  invoice  delivered 
at  Hamilton,  Ohio.  The  clause  imposing  interest  at  ten  per  cent 
applies,  in  express  terms,  only  to  saws  not  taken  by  the  defendant 
in  sixty  days  from  the  completion  of  their  manufacture.  The  evi- 
dence shows  that  all  the  saws  were  taken  by  the  defendant  within 
sixty  days  from  the  completion  of  their  manufacture.  The  clause 
is  somewhat  difficult  of  construction,  but  as  ten  per  cent  is  imposed 
in  some  sort  as  a  penalty,  we  are  inclined  to  think  it  should  be 
strictly  construed  in  favor  of  the  defendant,  and  held  to  mean,  that 
if,  for  any  reason,  he  was  not  in  readiness  to  receive  the  saws  within 
sixty  days,  and  their  delivery  was  thereby  postponed  beyond  that 
period  so  that  the  sixty  days'  time  for  payment  would  not  com- 
mence to  run  by  reason  of  non-delivery,  he  should  pay  ten  per  cent 
for  the  period  that  might  elapse  between  the  expiration  of  sixty 
days  from  manufacture  and  the  time  of  delivery.  Under  that  con- 
struction the  case  shows  nothing  to  which  the  penalty  of  ten  per 
cent  could  be  applied.  The  rate  of  interest  should,  therefore,  have 
been,  in  the  absence  of  proof  of  the  legal  rate  in  Ohio,  in  accord- 
ance with  the  legal  rate  of  our  own  State.  (Leavenworth  v.  Bro<k- 
way,  2  Hill,  201 ;  City  Savings  Bank  v.  Bidwell,  29  Barb.,  325  ; 
and  see  note  "  A  "  to  Leavenworth  v.  Brockway,  #upra.) 

Judgment  must  be  reversed  and  new  trial  granted,  with  costs  to 


PLUMMER  t.  BELDEN.  455 

FIKST  DEPARTMENT,  OCTOBER  TERM,  1876. 

abide  event,  unless  plaintiff  stipulates  to  reduce  the  amount  allowed 
for  interest  by  deducting  therefrom  $295.55,  within  twenty  days 
after  entry  of  order,  in  which  case  judgment  is  affirmed  for  the 
residue  without  costs  of  appeal  to  either  party. 

DANIELS  and  BRADY,  JJ.,  concurred. 

Judgment  reversed,  new  trial  ordered,  costs  to  abide  event, 
unless  plaintiff  stipulates  to  reduce  amount  allowed  for  interest  by 
deducting  therefrom  $295.55,  within  twenty  days  after  entry  of 
order,  in  which  case  judgment  affirmed  for  residue,  without  costs  of 
appeal  to  either  party. 


MYRICK  PLUMMER  AND  OTHERS,  RESPONDENTS,  v.  E.  P. 
BELDEN,  APPELLANT. 

Examination  of  party  before  trial — Attorney — entitled  to  notice —  Code,  §  891. 

Where  a  party,  required  to  attend  before  a  judge  or  referee  to  be  examined  as  a 
witness,  in  pursuance  of  section  391  of  the  Code,  has  appeared  in  the  action  by 
an  attorney,  notice  of  the  examination  should  be  served  upon  the  attorney  aa 
well  as  upon  the  party. 

APPEAL  from  an  order  of  the  Special  Term,  granting  an  attach- 
ment against  the  appellant  for  not  appearing  to  be  examined  as  a 
witness  before  a  judge  of  the  court,  under  section  391  of  the  Code. 

H.  Brewster,  for  the  appellant. 

John  H.  Hull,  for  the  respondents. 

DAVIS,  P.  J. : 

The  only  point  in  this  appeal  is,  whether  the  attorney  of  the  party 
is  entitled  to  notice  of  his  examination  as  a  witness  in  the  cause, 
when  summoned  for  the  purpose  under  the  provisions  of  section  391 
of  the  Code.  The  provisions  of  the  Code  on  the  subject  of  such 
examination  of  a  party  are  as  follows : 


456  PLUMMER  v.  BELDEN. 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

"§  391.  The  examination,  instead  of  being  had  at  the  trial  as 
provided  in  the  last  section,  may  be  had  at  any  time  before  the 
trial  at  the  option  of  the  party  claiming  it,  before  a  judge  of  the 
court  or  a  county  judge,  on  a  previous  notice  to  the  party  to  be 
examined,  and  any  adverse  party,  of  at  least  five  days,  unless  for  good 
cause  shown  the  judge  order  otherwise.  But  the  party  to  be 
examined  shall  not  be  compelled  to  attend  in  any  other  county  than 
that  of  his  residence,  or  where  he  may  be  served  with  a  summons 
for  his  attendance. 

"  §  392.  The  party  to  be  examined,  as  in  the  last  section  provided, 
may  be  compelled  to  attend  in  the  same  manner  as  a  witness  who 
is  to  be  examined  conditionally ;  and  the  examination  shall  be  taken 
and  filed  by  the  judge  in  like  manner,  and  may  be  read  by  either 
party  on  the  trial." 

The  proceedings  to  compel  the  attendance  of  a  party  for  exami- 
nation under  these  sections,  are  to  be  the  same  as  in  the  case  of  a 
•witness  who  is  to  be  examined  conditionally  under  the  provisions 
of  the  Revised  Statutes.  (2  R.  S.,  392.)  An  order  of  the  judge 
is  therefore  to  be  obtained  upon  affidavit  and  served  with  the  sum- 
mons for  the  appearance  of  the  party  at  the  time  and  place  specified 
in  the  order.  (§§  3  and  10  of  the  statutes  above  cited ;  Greene  v. 
Herder,  7  Robt.,  455 ;  S.  C.,  30  How.,  210  ;  Central  National  Bank 
of  N.  Y.  v.  Arthur,  2  Sweeney,  194 ;  Oarighe  v.  Losche,  6  Abb., 
284,  n. ;  Hewlett  v.  Brown,  1  id.,  74 ;  S.  C.,  1  Bosw.,  655  ;  Draper 
v.  Henningsen,  1  id.,  614 ;  2  Wait's  Prac.,  713.) 

The  provisions  of  the  statute  were,  when  the  same  were  enacted, 
applicable  only  to  the  examination  of  witnesses  and  not  of  parties 
to  actions,  and  after  issue  joined  in  an  action  no  examination  of  a 
witness  could  be  had  under  this  section  without  notice  to  the  attorney 
of  the  opposite  party. 

No  express  provision  is  contained  in  the  sections  of  the  Code 
above  cited  for  notice  of  such  examination  to  the  attorney  of  the 
party  to  be  examined,  but  as  an  order  for  such  examination  is 
necessarily  one  made  in  the  suit,  we  think  the  better  practice 
requires,  that  if  the  party  to  be  examined  has  appeared  in  the 
action  by  attorney,  a  copy  of  such  order  should  be  served  upon 
the  attorney  as  well  as  upon  the  party.  Section  417  of  the  Code 


MATTER  OF  N.  Y.  PROT.  EPIS.  PUBLIC  SCHOOL.     457 
FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

requires  that  where  a  party  shall  have  an  attorney  in  the  action, 
the  service  of  papers  shall  be  made  upon  the  attorney  instead  of 
the  party.  But  that  provision  does  not  apply  to  the  service  of 
the  summons  or  other  process  for  the  commencement  of  an  action, 
nor  to  any  paper  to  bring  a  party  into  contempt.  (§418  of  the 
Code.)  Nor  does  it  excuse  notice  to  the  party  personally,  where, 
as  in  section  391,  notice  to  such  party  is  expressly  required. 

The  cases  are,  to  some  extent,  in  conflict  on  the  question  whether 
notice  should  also  be  given  to  the  attorney ;  but  as  the  testimony 
taken  is  to  have  the  same  effect  as  though  taken  upon  the  trial  of 
the  issue,  and  may  be  used  by  either  party  upon  such  trial,  we 
think  the  opportunity  for  the  attorney  of  the  party  to  appear  and 
cross-examine  the  witness  should  be  secured  by  requiring  notice  to 
be  served  upon  him,  and  we  see  no  reasons  why  the  several  section* 
of  the  Code  above  cited  may  not  properly  be  so  construed  as  to 
allow  that  course  to  be  the  established  practice. 

We  think  the  order  of  the  court  below  granting  the  attachment 
should,  therefore,  be  reversed  ;  but,  as  the  question  is  one  not  here- 
tofore clearly  settled  by  the  authorities,  the  reversal  should  be  with- 
out costs  to  either  party. 

DANIELS  and  BEADY,  JJ.,  concurred. 
Order  reversed  without  costs  to  either  party. 


In  THE  MATTER  OF  THE  PETITION  OF  THE  NEW  YORK  PROT- 
ESTANT EPISCOPAL  PUBLIC  SCHOOL  TO  VAOATK 
ASSESSMENTS,  ETC. 

Astessment  —  when  vacated  under  chap.  580  of  1872. 

Under  the  provisions  of  chapter  580  of  1872,  providing  that  no  assessment  shan 
be  set  aside  except  in  cases  in  which  fraud  is  shown,  a  mere  defect  of  authority 
in  the  officer  contracting  for  the  work  is  not  sufficient  to  authorize  the  court  to 
vacate  the  assessment.  Accordingly,  upon  an  application  to  vacate  an  assess 
ment  on  the  ground  that  the  commissioner  of  public  works  had  no  authority 
HUN— VOL.  VIIT.  58 


458     MATTER  OF  N.  Y.  PROT.  EPIS.  PUBLIC  SCHOOL. 

FIKST  DEPARTMENT,  OCTOBER  TERM,  1876. 

to  make  the  contract  for  the  work,  without  a  previous  resolution  of  the  common 
council,  hfld,  that  whether  or  not  he  had  authority  so  to  do  was  immaterial,  aa 
a  mere  defect  therein  would  not  authorize  the  court  to  vacate  the  assessment 

APPEAL  from  an  order  of  the  Special  Term  dismissing  a  petition 
to  vacate  an  assessment. 


George  0.  Genet,  for  the  appellant. 
Hugh  L.  Cole,  for  the  respondent. 

DAVIS,  P.  J. : 

The  petition  in  this  case  seeks  to  vacate  assessments  levied  foi 
sewers  constructed  under  contracts  made  by  William  M.  Tweed, 
late  commissioner  of  public  works.  No  fraud  is  alleged  or  shown, 
and  the  principal  question  presented  is,  whether  the  commissioner 
had  power  to  make  such  contracts  for  the  construction  of  sewers 
without  a  previous  resolution  of  the  common  council  of  the  city. 

It  does  not  seem  to  be  necessary  to  pass  upon  the  question  of 
such  power,  because  by  section  7  of  chapter  580  of  the  Laws  of 
1872,  it  is  enacted  that  "  no  assessment  hereafter  made  or  imposed, 
or  which  shall  hereafter  be  made  or  imposed  for  any  local  improve- 
ment in  the  city  of  New  York,  shall  be  vacated  or  set  aside  for  or 
by  reason  of  the  omission  of  any  officer  to  perform  any  duty  imposed 
upon  him,  or  for  or  by  reason  of  any  defect  in  the  authority  of  any 
department  or  officer  upon  whose  action  the  said  assessment  shall 
in  any  manner  or  to  any  extent  depend,  or  for  or  by  reason  of  any 
omission  to  comply  with  or  carry  out  any  detail  of  any  law  or  ordi- 
nance, or  for  or  by  reason  of  any  irregularity  or  technicality,  except 
only  in  cases  in  which  fraud  shall  be  shown,  and  in  cases  of  repave- 
ment."  The  Court  of  Appeals,  In  the  Matter  of  Meyer  (50  N.  Y., 
505),  held  this  section  to  be  constitutional ;  and  amongst  other 
things,  in  speaking  of  the  section,  said  :  "The  remedy  by  petition, 
under  the  act  of  1858,  is  preserved,  but  the  grounds  for  vacating 
assessments  are  restricted  to  actual  fraud."  A  mere  defect  of  author- 
ity, therefore,  is  not  sufficient  to  justify  the  court  in  interfering 
with  the  assessment  under  the  act  of  1858.  The  Special  Term  was 
Jierefore  correct  in  dismissing  the  petition. 

We  do  not  consider  the  question  whether  the  commissioner  of 


HILL  v.  NEWICHAWANICK  COMPANY.  459 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

public  works  had  power  to  make  the  contract  without  a  previous 
ordinance  or  resolution  of  the  common  council.  The  late  decisions 
of  the  Court  of  Appeals,  in  Greene  v.  Mayer  (60  N.  Y.,  303)  and 
Matter  of  Blodgett  (not  yet  reported)  tend  to  establish  that  the 
power  of  that  officer  was  independent  and  unrestricted  by  resolu- 
tions and  ordinances. 

The  order  should  be  affirmed,  with  costs. 

BEADY  and  DANIELS,  JJ.,  concurred. 
Order  affirmed,  with  costs. 


CHARLES  E.   HILL,  RESPONDENT,  v.  NEWICHAWANICK 
COMPANY,  APPELLANT. 

Dividend  payable  at  future  time  —  who  entitled  to. 

The  board  of  directors  of  a  corporation  passed,  on  January  25,  1873,  the  following 
resolution  .  "At  a  meeting  of  the  board  of  directors,  held  this  day,  voted  to  pay 
a  dividend  of  four  per  cent  this  day,  and  another  of  like  amount  at  option  of 
agent  from  earnings  of  last  year." 

The  plaintiff  was  on  that  day  the  owner  of  certain  shares  of  the  company's  stock, 
then  deposited  by  him  as  collateral  security  with  a  bank,  by  which  they  were, 
in  July,  sold  at  private  sale.  On  the  7th  of  November,  the  company's  agent 
declared  the  second  dividend  of  four  per  cent  in  pursuance  of  the  resolution. 
Held,  that  the  plaintiff  was  the  owner  of  the  stock  at  the  time  the  dividend  was 
declared,  and  that  he,  and  not  the  purchaser,  was  entitled  thereto. 

APPEAL  from  a  judgment  in  favor  of  the  plaintiff,  entered  on 
the  trial  of  this  action  by  the  court. 

The  action  involves  the  question  of  title  to  a  dividend  declared  on 
evock  under  the  following  resolution,  adopted  by  the  directors  of 
defendant,  a  manufacturing  corporation  in  Maine,  on  the  25th  day 
of  January,  1873 : 

"At  a  meeting  of  the  board  of  directors  held  this  day : 

"  Voted,  to  pay  a  dividend  of  four  per  cent  this  day,  and  another 
of  like  amount,  at  option  of  agent,  from  earnings  of  last  year." 

On  that  day,  the  plaintiff  was  the  owner  of  275  shares  of  stock, 


460  THTJ.  v.  NEWICHAWANICK  COMPANY. 

FIBST  DEPARTMENT,  OCTOBEB  TKKM,  1876. 

held  bj  the  president  of  the  Park  Bank  as  collateral  to  a  loan 
The  bank  held  these  certificates  until  the  22d  day  of  March,  1873, 
when  it  surrendered  them,  and  caused  the  stock  to  be  transferred 
to  its  president  on  the  books  of  the  company. 

About  the  twenty-fifth  day  of  July,  Mr.  Kitchen,  president  of 
the  Park  Bank,  offered  to  sell  Mr.  Burleigh,  the  agent  of  the  com- 
pany at  whose  option  the  dividend  was  payable,  this  stock  and  Mr. 
Burleigh  bought  it.  On  the  7th  day  of  November,  1873,  defend- 
ant's agent  declared  a  four  per  cent  dividend,  which  was  paid  to  the 
parties  whose  names  appeared  on  that  day  as  stockholders  on  the 
books  of  the  company. 

On  the  23d  day  of  December,  1873,  the  plaintiff  demanded  this 
dividend,  which  was  refused,  and  thereupon  commenced  this  action, 
alleging  that  he  was  the  owner  of  the  stock  when  the  dividend  was 
declared. 

William  H.  Arnoux,  for  the  appellant.  Dividends  are  not  sever- 
able  from  the  stock  of  a  corporation,  until  the  time  fixed  for  the 
payment  thereof ;  but,  until  payable,  pass  with  the  stock  to  a  trans- 
feree, as  an  incident  thereto,  in  the  same  manner  as  rent  not  due 
under  a  lease  passes  to  the  grantee  of  the  fee.  (Burroughs  v. 
North  Carolina  R.  R.  Co.,  67  N.  C.,  376  ;  March  v.  Railroad,  43 
N.  H.,  520  ;  Minot  v.  Paine,  99  Mass.,  Ill ;  The  City  v.  Lamson, 
9  Wall.,  483 ;  Olive  v.  Olive,  1  Kay,  600 ;  Anson  v.  Towyood,  1 
Jac.  &  Walk.,  617  ;  Jones  v.  Ogle,  L.  K,  8  Ch.  App.,  192 ;  Hague 
v.  Dandeson,  2  Ex.,  741 ;  Wilson  v.  Harmon,  2  Yes.,  672;  Sher- 
rard  v.  Sherrard,  3  Atk.,  502  ;  Pearly  v.  Smith,  id.,  260 ;  Browne 
v.  Collins,  L.  R.,  12  Eq.,  586  ;  Johnson  v.  Moore,  27  L.  J.  [Ch.], 
453 ;  Kane  v.  Bloodgood,  7  Johns.  Ch.,  90 ;  Clapp  v.  Astor,  2 
Edw.  Ch.,  379  ;  Hyatt  v.  Alien,  56  N.  Y.,  553 ;  Earpj  Will,  I 
Pars.  Eq.,  453  ;  Goodwin  v.  Hardy,  57  Me.,  143,  145  ;  Van  Winck- 
len  v.  Paulton,  14  Barb.,  654 ;  Beebe  v.  Coleman,  8  Paige,  392.) 
The  resolution  of  the  board  of  directors  amounted  to  a  delegation 
to  Mr.  Burleigh  of  their  authority  to  declare  a  dividend.  This  they 
had  the  legal  power  to  do.  (Barnes  v.  The  Ontario  Bank,  19  N. 
Y.,  157;  Hoyt  v.  Thompson's  Executors,  19  id.,  216;  Olcott  v. 
Tioga  R.  R.  Co.,  27  id.,  557-559.)  A  dividend  has  no  legal  exist- 
ence nntil  a  time  is  fixed  for  its  payment.  (Wright  v.  Vt.  and 


HILL  v.  NEWICHAWANICK  COMPANY.  46l 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

Mass.  R.  R.  Co.,  12  Cush.,  68,  76,  77 ;  Burns  v.  Clark,  37  Barb., 
496  ;  Atkins  v.  Hiccocks,  1  Atk.,  500  ;  Andrew  v.  N.  Y.  Bible  and 
Prayer  Book  Society,  4  Sandf.,  173 ;  1  Roper  on  Legacies,  562 ; 
Caw  v.  Robertson,  5  N.  Y.,  125.) 

Charles  D.  Adams,  for  the  respondent.  A  dividend  declared  is 
a  portion  of  the  earnings  of  the  corporation  severed  from  the  com- 
mon fund,  and  set  apart  for  the  benefit  of  the  stockholders  at  the 
time  of  the  declaration.  (Jones  v.  Terre  Haute  and  Richmond  R. 
R.  Co.,  29  Barb.,  529  ;  affirmed,  57  N.  Y.,  196.)  It  becomes  hence- 
forth a  trust  fund  in  the  hands  of  the  corporation  for  the  stock- 
holders at  the  time,  and  cannot  be  devoted  to  other  objects. 
(Angell  &  Ames  on  Corporations  [8th  ed.],  541,  n. ;  2  Redfield  on 
Railways,  529,  §  240 ;  King  v.  Peterson  R.  Co.,  5  Butcher,  82 ; 
and  on  appeal,  5  id.,  504;  Phelps  v.  Farmers  and  Mechanic^ 
Bank,  26  Conn.,  272  ;  Carpenter  v.  N.  Y.  and  N.  H.  R.  R.  Co., 
5  Abb.  Fr.,  277;  Le  Roy  v.  The  Globe  Ins.  Co.,  2  Edw.  Oh.,  657; 
57  N.  Y.,  196.)  Declaring  a  dividend  payable  at  a  future  day,  as 
corporations  usually  do,  is  only  fixing  the  day  the  debt  will  be  due. 
The  debt  itself  exists,  and  is  owing  from  the  date  of  the  declara- 
tion. (Beers  v.  Bridgeport  Spring  Co.,  N.  Y.  Weekly  Digest, 
Feb.  14,  1876,  p.  8.)  The  sale  and  delivery  of  stock,  after  the 
declaration  of  a  dividend  and  before  it  is  payable,  does  not  carry 
with  it  the  dividend.  (Lombard  v.  Case,  45  Barb.,  95;  Spear  v. 
Hart,  3  Robts.,  420 ;  65  Barb.,  397 ;  March  v.  Eastern  R.  R.  Co., 
43  N.  H.,  515.) 

DAVIS,  P.  J. : 

It  is  very  clear  that  both  dividends  were  intended  to  be  made 
and  paid  out  of  the  earnings  of  the  year  1872.  The  resolution  of 
the  board  of  directors,  passed  January  25,  1873,  was  in  these 
words  :  "  At  a  meeting  of  the  board  of  directors,  held  this  day,  voted, 
to  pay  a  dividend  of  four  per  cent  this  day,  and  another  of  like 
amount  at  option  of  agent,  from  earnings  of  last  year." 

Read  in  connection  with  the  statement  of  the  affairs  of  the 
company  presented  by  the  agent,  it  is  manifest  that  the  directors 
concluded  and  decided  that  the  profits  of  the  year  1872  were  suffi- 
cient to  bear  a  dividend  of  eight  per  cent,  and  that  enough  of  sucn 


462  HILL  v.  NEWICHAWANICK  COMPANY. 

FIKST  DEPARTMENT,  OCTOBER  TERM,  1876. 

profits  were  in  hand  to  pay  four  per  cent  presently,  and  that,  when- 
ever the  uncollected  profits  should  be  realized  from  the  outstanding 
indebtedness  to  the  company,  tour  per  cent  more  could  properly  b« 
paid.  They  therefore  declared  the  second  dividend,  but  left  the 
time  of  its  payment  to  be  fixed  at  "  the  option  of  the  agent," 
through  whom  the  collections  were  to  be  made. 

It  is  expressly  admitted  in  the  case,  that  the  agent  exercised  that 
option  on  the  7th  of  November,  1873,  by  fixing  that  time  as  the 
day  for  payment  of  the  second  dividend.  It  does  not  appear 
in  the  evidence  that  the  profits  of  the  year  1872  were  not  adequate 
to  pay  the  second  dividend.  It  must  be  assumed  they  were  suffi- 
cient, because  that  fact  is  not  denied,  although  the  agent  is  of 
the  opinion  that  payments  of  the  second  dividend  were  made  out 
of  moneys  earned  in  1873.  The  moneys  earned  and  received,  both 
in  1872  and  1873,  seem  to  have  been  used  indiscriminately,  but 
that  fact  is  of  no  importance,  unless  there  be  clear  proof  that  the 
profits  of  1872  were  not  sufficient  to  pay  the  dividend. 

The  only  substantial  question  in  the  case  is:  who  was  entitled  t<» 
the  second  dividend  declared  for  the  year  1872,  the  owner  of  the 
stock  when  the  dividend  was  declared,  or  the  owner  when  the  day 
of  payment  was  subsequently  fixed  ?  The  Park  Bank  held  the 
legal  title  of  the  stock  when  the  dividend  was  declared  by  the 
directors,  but  as  it  held  the  same  in  pledge  as  collateral  security  for 
a  debt  of  plaintiff,  he  was  the  beneficial  owner.  The  record  title 
in  the  stock  register  of  defendants  was  in  plaintiff,  and  upon  his 
draft  the  four  per  cent  payable  immediately,  was  paid  to  the  Park 
Bank,  and  placed  to  his  credit.  He  also  gave  to  the  bank  an  order 
for  the  payment  of  the  second  four  per  cent,  whenever  it  should 
become  payable.  The  bank  offered  the  stock  for  sale  at  auction, 
in  Boston,  and  fixed  the  price  at  115,  with  the  dividend  already 
declared,  but,  as  it  was  bid  in  by  the  bank,  the  equitable  relations 
of  the  parties  were  not  changed,  although  afterward  the  president 
caused  the  stock  to  be  transferred  to  himself  on  the  books  of  the 
company. 

In  July  following,  and  while  holding  such  order,  the  Park  Bank 
•old  the  stock  to  one  Burleigh  who  was  the  agent  of  the  company. 
Doubtless,  Burleigh  thought  the  sale  carried  with  it  the  second 


HILL  v.  NEWICHAWANICK  COMPANY.  463 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

dividend  of  four  per  cent,  but  the  terms  of  the  sale  were  silent  on 
that  subject. 

After  the  sale,  the  plaintiff  revoked  the  order  for  payment  of  the 
dividend  to  the  bank,  and  the  bank  gave  him  a  consent  in  writing 
that  the  dividend  might  be  paid  to  him.  He  demanded  it  after 
the  day  of  payment  had  been  fixed  by  the  agent,  but  the  company 
paid  it  to  Bnrleigh  the  agent,  as  the  owner  of  the  stock. 

The  learned  court  below,  held  that  the  plaintiff  was  entitled  to 
the  dividend,  and  gave  judgment  accordingly.  In  this  conclusion 
we  think  the  court  was  correct. 

The  transaction  of  sale,  it  is  to  be  observed,  was  a  private  one 
between  the  bank  and  Burleigh.  It  was  not  made  through  the 
agency  of  brokers  at  a  board  or  exchange  governed  by  known 
usages  and  rules  which  enter  into  and  form  part  of  the  contract. 

It  is  understood  that  sales  of  stock  made  at  the  board  of  brokers 
in  this  city  at  any  time  before  the  day  fixed  for  the  closing  of  the 
books  of  transfer  of  the  corporation  or  company  declaring  a  divi- 
dend payable  at  a  future  day,  carry  with  them  the  dividend  so 
declared,  and  the  price  paid  is  regulated  accordingly.  After  the 
oooks  are  closed,  the  sales  are  understood  to  be  ex-dividend,  and 
the  price  is  correspondingly  affected,  by  the  fact  that  the  seller 
retains  and  is  to  collect  the  dividend.  Those  usages  or  rules  have 
nothing  to  do  with  this  case  and  the  offer  to  prove  them  was 
properly  excluded. 

The  dividend  of  the  earnings  of  1872,  already  declared  at  four 
per  cent,  although  payable  at  a  day  to  be  fixed  by  the  agent  of  the 
company  to  suit  its  own  convenience,  was  not  a  growing  incident 
of  the  stock,  at  the  time  of  its  sale,  but  a  fixed  and  determinate 
indebtedness  to  the  then  stockholder,  with  nothing  uncertain  about 
it  except  the  day  of  payment,  which  was  left  discretionary  with 
the  agent  of  the  corporation.  It  would  not  be  transferred  to  a 
subsequent  purchaser  of  the  stock  without  special  agreement,  nor 
was  it  necessary  that  it  should  be  reserved  on  such  sale  by  special 
agreement.  It  was  a  divided  share  of  past  earnings,  and  became, 
in  law,  a  severed  indebtedness  payable  to  the  then  owner  of  the 
stock,  without  regard  to  subsequent  transfers  of  such  stock.  A 
different  rule  would  apply  to  an  attempted  division  of  future 
earnings ;  but  that  was  not  this  case. 


464  BROWN  v.  NICHOLSON. 

FIROT  DEPARTMENT,  OCTOBER  TERM,  1876. 

We  see  no  error  sufficiently  material,  in  the  several  rulinga 
ezcepted  to  on  the  trial,  or  to  the  findings  or  refusals  to  find,  tc 
call  for  our  interference. 

The  judgment  should  therefore  be  affirmed,  with  costs. 

BRADY  and  DANIELS,  JJ.,  concurred. 
Judgment  affirmed. 


STEWART  BROWN  AND  JAMES  M.  BROWN,  TBUBTEKS, 
ETC.,  OF  SAMUEL  NICHOLSON,  DECEASED,  RESPONDENTS, 
v.  ELLEN  NICHOLSON  AND  OTHERS,  APPELLANTS. 

Will — vested  remainder. 

A  testator  bequeathed  certain  money  to  hia  two  sisters,  and  upon  the  death  of 
the  survivor  directed  the  same  to  be  "  distributed  to  or  among  such  of  the  children 
of  my  deceased  brother  William,  or  their  (said  children's)  representatives,  as  the 
survivor  of  iny  said  sisters  shall,  by  will  or  writing  in  the  nature  thereof,  direct, 
and  in  default  of  such  writing,  then  that  such  money  be  distributed  among  such 
children  or  their  representatives  per  stirpes  and  not  per  capita,  equally,  share  and 
share  alike."  Held,  that  the  fund  did  not  vest  in  the  ultimate  legatees  in 
remainder  until  the  decease  of  the  testator's  surviving  sister,  and  that  neither 
the  husbands  nor  the  widows  of  children  who  died  prior  to  that  time,  were 

entitled  to  participate  in  the  distribution  thereof.     (BRADY,  J.,  dissenting.) 

\ 

APPEAL  from  a  judgment  entered  upon  the  report  of  a  referee. 

This  action  was  brought  to  obtain  a  construction  of  the  will  of 
Samuel  Nicholson,  deceased,  and  to  have  the  accounts  of  the  plain- 
tiffs, as  trustees  thereunder,  passed,  and  the  funds  in  their  hands 
distributed  among  the  persons  entitled  to  receive  the  same. 

The  plaintiffs'  testator,  Samuel  Nicholson,  a  citizen  of  the  United 
States,  died  in  the  city  of  New  York  on  the  29th  of  April,  1857, 
leaving  a  last  will  and  testament,  which  was  duly  proved  and 
admitted  to  probate,  and  of  which  the  plaintiffs  were  appointed 
executors. 

By  his  will  he  directed  his  executors  to  pay  over  the  sum  of 
$50,000  to  each  of  his  two  sisters. 

"  But  on  the  death  of  one  of  my  sisters,  should  they  both  survive 


BROWN  v.  NICHOLSON.  4()5 

FIBST  DEPAHTMENT,  OCTOBER  TEUM,  1876. 

me,  or  on  my  death,  should  but  one  of  them  survive  me,  it  is 
my  will  that  my  surviving  sister  take  the  sum  bequeathed  to  the 
other  of  my  sisters,  and  that  on  the  death  of  such  survivor,  or  on 
iny  death,  should  I  survive  them  both,  that  the  moneys  so  bequeathed 
my  said  sisters  be  distributed  to  or  among  such  of  the  children  of 
my  deceased  brother  William  or  their  (said  children)  representatives 
as  the  survivor  of  my  said  sisters  shall,  by  will  or  writing  in  the 
nature  thereof,  direct,  and  in  default  of  such  writing  then  that  such 
moneys  be  distributed  among  such  children  or  their  representatives 
per  atirpes  and  not  per  capita,  equally,  share  and  share  alike  ;  that 
is  to  say,  I  design  the  sum  of  one  hundred  thousand  dollars  for  my 
said  sisters  to  be  divided  between  them  while  both  are  alive,  to  pass 
to  the  survivor  on  the  death  of  one  of  them,  and  to  be  distributed 
on  the  death  of  such  survivor  as  afore  provided  among  the  children 
of  my  brother  William." 

The  survivor  of  the  two  sisters  left  a  will  by  which  she  attempted 
to  exercise  the  power  of  appointment  given  to  her,  but  the  referee 
found  that  she  did  not  thereby  legally  and  effectually  direct  or 
appoint  the  distribution  of  the  fund  to  or  among  the  persons  therein 
named.  As  to  the  correctness  of  this  conclusion,  no  question  was 
raised  upon  this  appeal.  The  only  question  discussed  was  whether 
the  children  of  William,  who  were  living  at  the  time  of  the  testator  & 
death,  took  a  vested  remainder,  or  whether  such  remainder  did  not 
vest  until  the  death  of  the  surviving  sister. 

John  N.  Whiting,  for  Ellen  Nicholson  and  others,  appellants. 
Foster  cfe  Thomson,  for  Anna  M.  Mulligan  and  others,  appellants. 

F.  De  Peyster  Foster,  for  Rosanna  Nicholson  and  others, 
appellants. 

Niles  cfe  Bagley,  for  James  0.  Nicholson,  appellant. 
8.  F.  Biggins,  for  William  S.  Wallace,  appellant. 

N.  Dana  Wells,  guardian  ad  litem,  for  Henry  H.,  Anna  R.  and 
Emily  0.  Nicholson,  appellants. 

James  P.  Lworey,  for  the  respondents. 
HUN— VOL.  VIII.        59 


466  BROWN  v.  NICHOLSON. 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

DANIELS,  J. : 

The  learned  referee,  in  substance,  held  that  the  testator,  Samuel 
Nicholson,  designed  that  his  estate  should  be  distributed  on  the 
death  of  his  surviving  sister,  and  for  that  reason,  under  a  mere 
power  of  appointment,  she  could  not  prevent  such  a  distribution 
by  the  creation  of  an  intervening  trust.  And  that  conclusion 
appears  to  have  been  warranted  by  the  terms  of  the  testator's  will. 
By  the  disposition  and  division  which  the  referee  directed  should 
be  made  of  the  fund  which  constituted  the  estate,  he  also  held,  in 
substance,  that  the  fund  did  not  become  vested  in  the  ultimate 
legatees  in  remainder  until  the  decease  of  the  testator's  surviving 
sister.  And  concerning  the  accuracy  of  that  conclusion  a  difference 
of  opinion  appears  to  exist  If  the  referee  is  right,  then  neither  the 
husband  nor  the  wives  of  the  persons  who  died  during  the  lifetime 
of  the  testator's  surviving  sister  have  any  right  to  participate  in 
the  distribution  of  the  fund.  Whether  he  is  or  not,  must  depend 
upon  the  time  when  the  title  in  remainder  to  the  fund  became 
vested.  If  that  occurred  on  the  decease  of  the  testator,  Samuel 
Nicholson,  then  the  referee  was  necessarily  wrong  in  the  distribu- 
tion directed  to  be  made  by  his  report.  But  if  the  title  in  remainder 
did  not  vest,  until  the  decease  of  the  testator's  surviving  sister,  then 
the  conclusion  of  the  referee  was  right  and  should  not  be  disturbed. 

The  testator,  in  terms,  made  no  present  gift  of  the  fund.  But 
he  divided  it  for  life  between  his  two  sisters,  who  survived  him, 
•while  they  lived,  and  gave  the  whole  fund  for  life  to  the  survivor 
of  them.  At  the  decease  of  the  survivor  he  directed  "  that  the 
moneys  so  bequeathed  my  said  sisters  be  distributed  to  or  among 
«mch  of  the  children  of  my  deceased  brother  William  or  their  (said 
children)  representatives  as  the  survivor  of  my  said  sisters  shall  by 
will  or  writing  in  the  nature  thereof  direct.  And  in  default  of  such 
writing  then  that  such  moneys  be  distributed  among  such  children 
or  their  representatives  per  stirpes  and  not  per  capita,  equally,  share 
and  share  alike.  That  is  to  say,  I  design  the  sum  of  $100,000  for 
my  said  sisters  to  be  divided  between  them  while  both  are  alive, 
to  pass  to  the  survivor  on  the  death  of  one  of  them.  And  to  be 
distributed  on  the  death  of  such  survivor,  as  afore  provided,  among 
the  children  of  my  brother  William." 

The  primary  purpose  of  the  testator  evidently  was,  that  the  fund 


BROWN  v.  NICHOLSON.  467 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

should  be  distributed  among  such  of  his  brother  William's  children, 
and  their  descendants,  as  should  be  appointed  to  receive  it,  under 
the  power  given  to  his  surviving  sister.  Until  that  power  was 
either  executed,  or  there  was  a  failure  to  execute  it,  the  disposition  of 
the  remainder  in  the  fund  was  contingent  and  uncertain.  It  was 
not  given  to  all  the  children  of  William  and  their  descendants 
unless  a  selection  from  among  them  should  be  made  by  virtue  of 
the  power.  But  the  design  was  that  the  persons  nominated  by  his 
surviving  sister  should  be  the  recipients  of  the  fund.  And  it  was 
only  in  case  she  failed  to  exercise  the  authority  given  to  her  over 
it  that  the  fund  was  to  be  distributed  among  all  the  children  of 
William  and  their  descendants.  Until  the  time  of  that  failure  it 
could  not  be  known  whether  the  fund  was  to  be  distributed  among 
all,  or  only  a  portion  of  the  persons  referred  to.  And  either  dis- 
tribution, by  the  clear  import  of  the  terms  used,  was  to  be  con- 
fined to  the  children,  and  the  representatives  or  descendants  of  the 
deceased  children,  of  William.  The  persons,  in  any  event,  who 
were  entitled  to  participate  in  the  distribution,  must  be  either 
children  or  the  representatives  of  children  of  the  testator's  brother 
William.  And  that  was  to  be  their  relation  at  the  time  when  the 
distribution  was  required  to  be  made,  which  was  on  the  decease  of 
the  surviving  sister  of  the  testator.  They  were  then  to  be  child- 
ren, or  the  representatives  of  the  children  of  William,  and  that,  as 
well  as  the  contingency  resulting  from  the  power  of  appointment, 
excluded  those  who  died  before  the  decease  of  the  testator's  sur- 
viving sister.  That  was  apparently  the  intention  of  the  testator. 
It  was  quite  clearly  indicated  by  the  terms  used  for  the  purpose  of 
defining  and  controlling  the  gift,  as  they  were  employed  in  the 
will.  It  was  made  to  take  effect  at  the  decease  of  his  surviving 
sister,  and  then  only  to  extend  to  all  the  children  and  their 
descendants,  in  case  she  failed  to  exercise  the  power  of  appoint- 
ment given  to  her.  Futurity  was  annexed  to  the  substance  of  the 
gift,  and  for  that  reason  it  did  not  and  could  not  vest  until  it 
should  become  known  who  were  the  persons  to  receive  the  prop- 
erty designed  to  be  given.  (Eoeritt  v.  Everitt,  29  N.  Y.,  39,  75 ; 
2  Redfield  on  Wills  [2d  ed.],  10-12.)  The  case  of  Barker  v.  Woods 
(1  Sandf.  Oh.,  129),  is  not  controlling  in  a  controversy  of  this 
description,  for  the  reason,  that  the  remainder,  after  the  expira- 


468  BROWN  v.  NICHOLSON. 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

tion  of  the  life  estates,  was  not  given  to  other  persons  within  the 
signification  of  the  rule  there  mentioned.  It  was  given  to  no  one 
until  the  decease  of  the  surviving  sister  of  the  testator,  and  then  it 
was  restrained  and  confined  to  the  persons  who  should,  at  that 
time,  be  either  children  or  the  representatives  of  deceased  children 
of  his  brother  William.  Such  of  those  children  were  intended  to 
participate  in  the  distribution  as  the  surviving  sister  should  appoint, 
or  if  no  appointment  were  made  then  all  were  to  enjoy  the  bounty 
of  the  testator  from  whom  the  selection  might  be  made.  That 
power  of  selection  was  limited  to  the  children  living  when  it 
might  be  exercised ;  and  the  right  to  participate  in  the  distribution 
of  the  fund  in  no  event  was  to  extend  beyond  them. 

The  judgment  entered  upon  the  referee's  report  should  there- 
fore be  affirmed. 

DAVIS,  P.  J.,  concurred. 

BEADY,  J.  (dissenting,  in  part  only) : 

All  of  the  questions,  save  two,  so  thoroughly  discussed  on  the 
argument  of  this  appeal,  were  properly  disposed  of  by  the  referee  in 
an  able  and  comprehensive  opinion,  and  it  is  deemed  unnecessary  to 
reiterate,  in  different  phrase,  what  he  has  so  clearly  expressed.  It 
may  be  that  his  conclusions  can  be  sustained  by  more  numerous 
authorities  than  he  has  cited,  as  illustrated  by  the  brief  of  Messrs. 
Foster  and  Thomson,  and  A.  J.  Vanderpoel,  Esqs.,  submitted  on 
the  argument,  in  support  of  his  views,  but  that  is  not  material.  It 
is  enough  that  he  was  right. 

The  effect  of  the  findings  is,  that  the  trust  fund  is  appropriated  as 
the  donor  designed  it  should  be,  and  his  intention,  therefore,  which 
is  the  guide  in  the  construction  of  wills,  prevails. 

He  meant  that  the  children  of  his  brother,  William  Nicholson, 
and  their  representatives,  should  have  and  enjoy  the  trust  fund 
upon  the  death  of  his  sisters,  and  he  did  not  contemplate,  unless 
some  excellent  reason  existed  which  justified  it,  that  any  distinc- 
tion should  be  made  between  them.  He  exhibited  no  preference 
himself,  and  there  is  nothing  in  the  case  from  which  the  inference 
of  prejudice  can  be  fairly  drawn. 

The  views  of  the  referee  are  adopted,  therefore,  as  a  careful  and 


BROWN  v.  NICHOLSON.  469 

FIKST  DEPAKTMENT,  OCTOBEK  TERM,  1876. 

sorrect  exposition  and  application  of  the  law  which  governs  thia 
case,  and  this  result  renders  it  necessary  only  to  consider  the  claims 
of  Elizabeth  Nicholson,  widow  of  John  Nicholson,  sixth  child  of 
William  Nicholson ;  Eliza  Nicholson,  widow  of  Robert  George 
Nicholson,  fifth  son  of  William  Nicholson  ;  Rosauna  Nicholson, 
widow  of  Henry  K.  K.  Nicholson,  son  of  Thomas  Nicholson,  eldest 
son  of  William  Nicholson ;  and  of  William  S.  Wallace,  husband 
and  administrator  of  Hannah  K.,  the  daughter  of  Thomas  Nichol- 
son, all  allusion  to  which  seems  to  be  omitted  in  the  opinion  of  the 
referee.  The  questions  presented  in  relation  to  them  are,  whether 
these  widows  are  entitled  to  a  distributive  share  of  the  husband's 
portion,  and  whether  Wallace  is  entitled  to  a  part  of  the  share  of 
his  wife. 

The  testator,  Samuel  Nicholson,  conferred  upon  his  surviving 
sister  the  power  of  distributing  the  trust  fund  among  such  of  the 
children  of  his  deceased  brother  William,  or  their  representatives, 
as  she  should  select,  but  he  declared  that,  in  default  of  such  choice, 
then  such  moneys  should  be  distributed  among  such  children,  or 
their  representatives,  per  stirpes  and  not  per  capita,  share  and 
share  alike.  And  further,  in  order  that  there  should  be  no  mis- 
apprehension, he  said  :  "  That  is  to  say,  I  design  the  sum  of  $100,000 
for  my  said  sisters,  to  be  divided  between  them,  while  both  are 
alive,  to  pass  to  the  survivor  on  the  death  of  one  of  them,  and  to 
be  distributed  on  the  death  of  such  survivor,  as  aforesaid,  among 
the  children  of  my  brother  William." 

The  intention  of  the  testator  was,  that  the  sum  set  apart  for  his 
sisters  should  ultimately  be  given  to  some  or  all  of  the  children  of 
his  brother  William,  or  their  representatives,  and  the  right  of  selec- 
tion only  was  given  to  the  surviving  sister.  In  case  of  the  failure 
to  select,  the  whole  was  to  be  distributed  among  them  all,  and  they 
all  took  a  vested  interest  in  the  subject  of  the  gift,  therefore  liable 
only  to  be  divested  by  the  exercise  of  the  power  to  appoint  or  select 
from  among  them.  The  surviving  sister  had  not  the  power  to  divest 
the  interest,  except  in  the  manner  provided  by  the  instrument 
creating  the  power,  and  having  failed  properly  to  exercise  the  duty 
or  right  given  her,  the  provision  of  the  will  applies  and  is  as  if  it 
were  written  thus :  "  Upon  the  decease  of  my  surviving  sister,  I 
direct  the  said  sum  of  $100,000,  to  be  distributed  among  the 


470  BROWN  v.  NICHOLSON. 

FIBBT  DEPARTMENT,  OCTOBER  TERM,  1876. 

children  of  my  brother  William,  or  their  representatives."  The 
fund  was  disposed  of  absolutely,  subject  only  to  the  trust  which 
was  created  for  the  benefit  of  the  testator's  sisters,  and  the  power 
which  ought,  perhaps,  to  be  called  a  trust.  This  subject  is  treated 
fully  by  Perry,  in  the  chapter  devoted  to  "  trusts  that  arise  by 
construction  from  powers  "  (§  248,  et  seq.\  which  contains  a  correct 
exposition  of  the  law  applicable  to  a  case  like  this.  Under  the 
statute  of  distributions  the  widow  has  always  been  entitled  to  share 
in  the  personal  estate  of  the  deceased  husband  (Eng.  Stat.,  2 
Black.  Com.,  515 ;  2  R.  S.,  96,  §  75),  and  the  authorities  sustain 
her  right  to  receive  her  portion  of  the  personal  estate  belonging  to 
the  husband,  allotted  them  under  the  statute  of  distributions,  accord- 
ing to  the  facts  proved.  (Cotton  v.  Cotton,  2  Beav.,  67;  Merchants' 
Ins.  Co.  v.  Hinman,  34  Barb.,  410  ;  see  Knickerbocker  v.  Seymour, 
46  id.,  198;  Luce  v.  Dunham,  14  S.  C.  N.  Y.  [7  Hun],  202.) 

For  these  reasons  we  think  the  widows  named  are  entitled  to 
such  part  of  the  husbands'  share  as  would  have  been  distributed  to 
them  under  the  statute,  had  the  money  been  in  possession  of  the 
husband  at  the  time  of  his  death. 

The  claim  of  William  S.  Wallace  seems  to  be  well  founded,  to  a 
portion  of  the  funds.  The  right  of  the  husband  to  administer 
upon  the  personal  estate  of  his  deceased  wife  is  a  positive  right, 
notwithstanding  the  statutes  of  1848  and  1849.  (McCosker  v. 
Golden,  1  Brad.,  64  ;  Ransom  v.  Nichols,  22  N.  Y.,  110 ;  Barnes  v. 
Underwood,  47  id.,  351 ;  Hatfield  v.  Sneden,  54  id.,  287 ;  2  R.  S., 
75,  §  29.)  Under  the  amendment  of  the  Revised  Statutes,  passed 
April  25, 1867,  chapter  782  (Laws,  vol.  2,  p.  1926),  the  provisions 
respecting  the  distribution  of  estates  were  applied  to  the  personal 
estates  of  married  women  dying  leaving  descendants  then  surviving, 
and  the  husband  of  any  such  deceased  married  woman  became 
entitled  to  the  distributive  share  in  the  personal  estate  of  his  wife 
to  which  a  widow  is  entitled  in  the  personal  estate  of  her  husband 
by  the  provisions  of  that  chapter,  and  no  more. 

Prior  to  the  amendment,  the  provisions  mentioned  were  declared 
inapplicable  to  the  personal  estates  of  married  women,  but  it  was 
also  declared  that  their  husbands  might  demand,  recover  and  enjoy 
the  same,  as  they  were  entitled  by  the  rules  of  the  common  law. 
(2  R.  S.,  vol.  2,  p.  97,  §  79.)  The  statute  of  1867  was  regarded  tut 


NASH  v.  MITCHELL.  471 

FIBST  DEPARTMENT,  OCTOBER  TERM,  1876. 

restrictive,  but  the  Court  of  Appeals,  determined  that  it  did  not 
affect  the  rights  of  the  husband,  except  in  the  case  therein  specified, 
namely,  of  the  wife  dying  leaving  descendants.  (Barnes  v.  Under- 
wood, 47  N.  Y.,  351.) 

Mrs.  Wallace  left  no  descendants.  The  decree  should  be  modi- 
fied by  making  the  necessary  changes  to  meet  these  claims,  but 
otherwise  it  is  affirmed.  The  costs  of  the  appeal  should  be  paid 
out  of  the  fund. 

Judgment  affirmed. 


CHARLES  W.  NASH  AND  NELSON  H.  FULLER,  RESPOND- 
ENTS, v.  ISABELLA  H.  MITCHELL,  APPELLANT. 

Married  woman  —  separate  estate  —  Contracts — benefit  of  separate  estate  — presump- 
tion of  law. 

Where  a  married  woman,  who  has  a  separate  estate  and  carries  on  business  in 
relation  thereto,  keeping  a  bank  account  in  her  own  name,  draws  a  check  upon 
such  account  payable  at  a  future  day  on  which  she  borrows  money,  the  law 
presumes,  in  the  absence  of  evidence  to  the  contrary,  that  such  money  was 
borrowed  for  the  benefit  of  her  separate  estate,  and  holds  her  liable  therefor. 

APPEAL  from  a  judgment  in  favor  of  the  plaintiff,  entered  on 
the  report  of  a  referee. 

James  E.  Wheeler,  for  the  appellant. 
Samuel  J.  Crooks,  for  the  respondents. 

DAVIS,  P.  J. : 

On  the  4th  day  of  November,  1872,  Charles  Mitchell,  the  hus- 
band of  the  appellant,  received  from  the  plaintiffs  their  check  on 
the  Park  Bank  for  $500,  payable  to  his  own  order,  and  which  was 
indorsed  by  him  and  paid  on  that  day,  and  in  exchange  therefor 
he  gave  to  the  plaintiffs  a  check  for  the  same  amount  on  the  Central 
Bank  of  Westchester  County  at  White  Plains,  postdated  Novem- 
ber 9th,  1872,  signed  "  I.  H.  Mitchell  by  C.  H.  Mitchell,  attorney." 
This  check  was  duly  presented  at  maturity  and  payment  was  refused 
by  the  bank  and  the  check  was  protested.  This  suit  is  brought  upon 


472  NASH  ».  MITCHELL. 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

the  last  named  check.  Mrs.  Mitchell  kept  an  account  in  the  Cen- 
tral Bank  of  Westchester  county  before  and  at  the  time  of  the 
making  of  the  check  j  and  she  had  previous  to  that  time  deposited 
with  the  cashier  of  that  bank  a  power  of  attorney,  dated  February 
1st,  1872,  empowering  Charles  H.  Mitchell  "  to  make,  sign,  indorse 
or  accept  checks,  notes,  drafts  and  bills  of  exchange  for  the  defendant 
and  in  her  name."  She  had  at  that  time  a  separate  estate,  consist- 
ing of  a  house  and  ten  acres  of  land  situate  in  Westchester  county, 
gnd  of  lands  in  New  Jersey;  and  her  husband,  acting  as  her  agent, 
employed  persons  to  carry  on  the  place  in  Westchester  county,  and  he 
received  and  disbursed  money  for  the  estate  in  New  Jersey.  The 
learned  referee  having,  in  substance,  found  these  facts,  also  found  that 
"  in  the  giving  and  exchange  of  said  checks  the  said  Charles  H. 
Mitchell  acted  as  the  agent  and  attorney  of  said  defendant."  In  his 
conclusions  of  law,  in  addition  to  the  conclusion  that  the  defendant  is 
liable  for  the  amount  of  the  check,  the  referee  decides,  "  that  the 
same  was  drawn  upon  her  separate  account,  and  for  the  benefit 
of  her  separate  estate ;  that  the  defendant  was  then  carrying  on 
business  in  her  own  name,  for  her  own  benefit,  the  said  C.  H. 
Mitchell  acting  for  her  therein  as  her  agent."  It  seems  to  have 
been  clearly  shown,  that  the  husband  had  been  constituted  the 
agent  of  his  wife,  for  the  purpose  of  drawing  checks  in  her  name 
and  on  her  account,  by  a  formal  power  of  attorney.  The  finding 
of  the  learned  referee,  that,  in  the  giving  and  exchange  of  the 
checks,  he  acted  as  the  agent  and  attorney  of  the  defendant,  seems 
to  put  the  case  precisely  upon  the  same  ground  as  though  Mrs. 
Mitchell  then  being  a  married  woman,  had  herself  made  the  post- 
dated check,  and  received  from  plaintiffs  their  check  to  be  exchanged 
therefor.  Had  she  in  fact  executed  the  check  in  suit  herself,  the 
question  in  the  case  would  have  been,  whether  the  transaction  was 
one  made  by  her  for  the  benefit  of  her  separate  estate.  A  married 
woman  who  authorizes  an  agent  to  incur  a  liability,  is  to  be  held 
responsible  precisely  on  the  same  ground  where  the  agent  has 
created  an  indebtedness,  and  to  the  same  extent,  as  though  she  her- 
self had  performed  the  act  in  person.  Assuming,  therefore,  that 
she  gave  the  check,  it  cannot  be  said  that  she  made  herself  liable 
upon  it  by  thereby  charging  her  separate  estate,  because  the  check, 
being  postdated,  was  in  its  nature  an  executory  contract,  payable 


NASH  v.  MITCHELL.  47B 

FIKST  DEPARTMENT,  OCTOBER  TERM,  1876. 

at  a  future  day,  and  not  an  instrument  drawn  upon  an  existing  and 
specific  fund,  payable  presently.  The  case  turns,  therefore,  upon 
the  question,  whether  the  transaction  can  be  deemed  one  made  by 
her  for  the  benefit  of  her  separate  estate,  or  for  her  separate  busi- 
ness. The  referee  has  not  passed  upon  this  question  as  one  of  fact, 
although  he  says,  as  one  of  his  conclusions  of  law,  that  the  check 
was  drawn  upon  her  separate  account,  for  the  benefit  of  her  sepa- 
rate estate,  and  that  she  was  carrying  on  business  in  her  own 
name,  for  her  own  benefit.  From  the  form  in  which  he  states 
these  "conclusions  of  law,"  we  ought  to  regard  them  as  legal 
deductions  from  the  facts  previously  found  by  him  and  stated 
in  his  report,  and  not  as  facts  intended  to  be  found  by  him. 
The  case,  therefore,  seems  to  turn  upon  the  solution  of  this  propo- 
sition :  Where  a  married  woman  who  has  a  separate  estate,  and 
carries  on  business  in  relation  to  such  estate,  and  keeps  an  account 
in  bank  in  her  own  name,  draws  a  check  upon  such  account  payable 
at  a  future  day,  on  which  she  borrows  money,  what  presumption  of 
law  arises?  Is  it  that  such  money  is  borrowed  for  the  benefit  of 
her  separate  estate,  or  for  use  in  her  separate  business,  or  on  a  gen- 
eral liability,  independently  of  such  separate  estate  or  business  ?  If 
the  law  presumes  the  latter,  then  the  defendant  would  not  be  liable 
in  this  case  until  the  plaintiff  showed  that  the  money  loaned  was  in 
fact  for  the  benefit  of  her  separate  estate  or  her  separate  business. 
If  the  former  presumption  prevails,  then  the  liability  would  arise 
against  her,  unless  s.he  showed  affirmatively  that  the  money  was  not 
obtained  by  her  agent  for  the  benefit  of  her  separate  estate  or  business. 
In  our  opinion  the  presumption  is,  that  the  money  was  borrowed  by 
the  agent  for  the  benefit  of  her  separate  estate  and  business,  and  that 
liability  arises  against  her  upon  the  facts  found  by  the  learned  referee. 
The  grounds  stated  in  The  Manhattan  Brass  and  Manufacturing 
Co.  v.  Thompson  (58  N.  Y.,  80)  upon  which  a  married  woman's 
liability  may  be  enforced,  are:  "First,  when  created  in  or  about 
carrying  on  trade  or  business  of  the  wife.  (Barton  v.  Beer,  35 
Barb.,  78 ;  Frecking  v.  Rolland,  53  N.  Y.,  422.)  Second,  when 
the  contract  relates  to  or  is  made  for  the  benefit  of  her  separate 
estate.  (Owen  v.  Cawley,  36  N.  Y.,  600  ;  27  id.,  35.)  Third,  when 
the  intention  to  charge  the  separate  estate  is  expressed  in  the 
instrument  or  contract  by  which  the  liability  is  created.  (Yale  v. 
HUN— VOL.  VIII.  60 


474  MOTT  t>.  MOTT. 

FIBOT  DEPARTMENT,  OCTOBKU  TKKM,  1876. 

Dederer,  18  N.  Y.,  265;  S.  C.,  22  id.,  450;  Maxon  \   Scott,  ( 
App.,  not  reported. }n     If  we  are  right  iu  the  position  that,  u; 
the  facts  in  this  case,  a   presumption  arises  that   the   debt   was 
created  in  or  about  the  carrying  on  of  a  trade  or  business  of  the 
wife,  or  for  the  benefit  of  her  estate,  the  fact  that  it  was  made  by 
the  authorized  agent  of  the  wife  makes  no  difference  with  her 
liability. 

The  referee  has  found  that  the  agent  was  authorized,  and  the 
power  of  attorney  given  to  him  by  the  defendant  was  broad  enough 
in  its  language  to  justify  such  finding.  It  empowered  him  to  make, 
sign,  indorse  and  accept  all  checks,  notes,  drafts  and  bills  of  exchange 
for  her  and  in  her  name,  which  language  we  think  is  broad  enough 
to  include  the  postdated  check  in  question. 

It  follows  that  the  judgment  appealed  from  should  be  affirmed, 
ieith  costs. 

BRADY  and  DANIELS,  JJ.,  concurred. 
Judgment  affirmed. 


HENRY  A.  MOTT  AND  OTHERS  v.   THADDEUS   P.   MOTT 

AND   OTHERS. 

Basement  —  union  of  senient  and  dominant  estates — grant  of  lot  on  street — fee  to 

center,  wfan  passes. 

Where  a  right  of  way  over  a  private  street  or  lane  exists  in  favor  of  the  several 
lots  fronting  thereon,  and  all  such  lots  are  subsequently  acquired  by  one  person, 
the  easement  is  thereby  extinguished. 

Where  the  owner  of  land  conveyed  lots  fronting  on  a  private  lane,  the  deed 
describing  them  as  running  "to  the  side  of  a  lane  twenty  feet  wide,  thence 
along  the  same,"  and  then  providing  "and  also  the  privilege  of  using  from 
tune  to  time  and  at  all  tunes  hereafter  *  *  *  the  said  lane,"  the  grantee  to 
pay  his  proportional  part  of  the  expenses  of  keeping  the  lane  in  repair,  held, 
that  there  was  no  intention  in  the  grantor  to  reserve  to  himself  the  lane,  and 
that  one  acquiring  title  to  all  the  lots  fronting  thereon  became  the  ownei 
thereof  in  fee,  and  was  entitled  to  devote  the  same  to  any  use  he  might  thinb 
proper. 

APPEAL  by  Frederick  H.  Cossitt,  from  an  order  of  the  Special 
Term  requiring  him  to  complete  his  purchase  of  certain  lots. 


MOTT  v.  MoTT.  475 


FIRST  DEPARTMENT,  OCTOBEB  TEBM,  1876. 


Under  the  decree  of  this  court  in  the  main  cause,  the  lands 
whereof  Dr.  Valentine  Mott  died  seized  were  sold,  at  public  auc- 
tion, in  April  and  May,  1874,  by  Henry  A.  Mott  and  John  Chet- 
wood,  executors  of  his  will,  and  James  McQuade,  united  with  them 
as  referee,  sales  being  made  by  city  lot  numbers  as  shown  upon 
maps,  published  and  circulated  at  the  sale. 

The  petitioner,  Cossitt,  purchased  several  parcels.  The  aggre- 
gate of  the  several  purchases  was  $93,050,  and  Mr.  Cossitt  paid 
ten  per  cent  thereof,  and  the  auction  fees,  and  obtained  one  receipt 
therefor,  and  signed  one  memorandum  at  the  foot  of  the  terms 
of  sale,  which  however  expressed  that  the  lots  were  sold  in  sepa- 
rate parcels.  He  refused  to  pay  the  remainder  of  the  purchase 
money  and  complete  his  purchases,  claiming  that  Dr.  Mott  was 
not  seized  of  the  "fee  simple  to  a  strip  of  land  twenty  feet  in 
width,"  stated  to  be  "  a  lane  or  right  of  way,  originally  laid  out 
by  the  heirs  of  Charles  Ward  Apthorpe,  deceased,"  and  not  to 
have  been  conveyed  in  fee  simple  by  the  deeds  executed  by  them. 
And  he  stated  as  the  objection  respecting  the  lots  numbers  thirteen 
and  four,  that  there  was  no  title  to  these  lots.  No  other  defect  or 
objection  was  alleged  by  him,  but  it  was  claimed  that  his  purchases 
were  of  an  entirety,  and  that  the  objections  alleged  against  the  title 
of  the  lots  covered  by  the  lane,  and  of  numbers  four  and  thirteen, 
were  sufficient  to  relieve  him  from  the  purchases  of  all  the  parcels. 

The  lane  in  question  crossed  or  touched  the  lots  numbers  seven 
and  eight,  and  those  lots  only.  And  upon  the  same  map  the  lots 
numbers  four  and  thirteen,  also  objected  to,  appear  as  sections  of 
the  westerly  half  of  Bloomingdale  road.  The  sale  map,  a  copy 
of  which  was  annexed  to  the  answer,  did  not  exhibit  the  twenty 
foot  lane. 

By  deeds  executed  to  him  by  Samuel  Oakley  in  1833,  and  by 
Thomas  D.  Carpenter  in  1834,  it  is  conceded  that  Dr.  Mott  acquired 
perfect  title  in  fee  simple  to  all  the  lands  adjoining  the  lane 
throughout  its  extent.  And  thenceforward  he  was  in  undisputed 
possession  of  these  lands,  and  also  exercised  sole  dominion  and  con- 
trol over  the  lane  itself,  keeping  it  in  fence  and  repair,  using  it  at 
pleasure  for  pasturage  and  other  purposes,  maintaining  locked  gates 
across  it,  extending  it  through  his  own  land  to  the  river,  and  col- 
lecting tolls  for  business  use  of  it. 


476  MOTT  v.  MOTT. 


FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 


The  purchaser  claimed  that  Mott  never  acquired  the  title  in  fee 
simple  to  the  strip  of  land  twenty  feet  in  width,  running  from  east 
to  west  across  the  premises  purchased  by  him,  and  in  proof  thereof, 
produced  the  deeds  from  the  heirs  of  the  original  owner,  Charles 
Apthorpe,  to  the  grantor  of  Mott.  In  one  deed  made  in  1799,  the 
boundaries  of  the  premises  conveyed,  so  far  as  they  affect  this  ques- 
tion, are  as  follows :  "  Thence  south  twenty -eight  degrees  thirty 
minutes  west,  nine  chains  seventy-five  links  to  the  side  of  a  lane 
twenty  feet  wide ;  thence  along  the  same  south  fifty-eight  degrees 
east,  ten  chains  sixty  links  to  the  Bloomingdale  road  ;  thence  along 
the  said  road  north  twenty-eight  degrees  thirty-nine  minutes  east, 
nine  chains  seventy-five  links  to  the  place  of  beginning." 

This  deed  also  contains  the  following  provisions :  "And  also  the 
privilege  of  using,  from  time  to  time,  and  all  times  forever  here- 
after, with  servants,  laborers,  horses,  oxen,  cattle,  wagons,  carts  and 
carriages,  as  well  the  said  lane  leading  to  Striker's  as  the  lane  of 
twenty  feet  wide  on  the  said  map  particularly  delineated ;  the  said 
David  M.  Clarkson,  his  heirs  and  assigns,  always  bearing  and  pay- 
ing in  common  with  the  heirs  of  the  said  Charles  Ward  Apthorpe, 
and  their  heirs  and  assigns,  his,  her  or  their  proportional  part  of 
the  expenses  of  keeping  the  said  lane  leading  to  Striker's  and  the 
said  lane  of  twenty  feet  in  proper  repair." 

And  in  the  second  deed  the  boundaries  of  the  premises,  so  far  as 
they  affect  this  lane,  are  as  follows:  "Thence  along  the  same  (the 
Bloomingdale  road)  north  thirty-two  degrees  east,  five  chains  forty- 
two  links  to  a  lane  on  the  south  side  of  Clarkson's  land ;  thence 
north  fifty-five  degrees  west,  twenty-three  chains  forty  links  to 
Hudson  river ;  thence,"  etc. 

Charles  Jones,  for  the  appellant. 

i 
C.  A.  Hand,  for  the  respondent. 

BRADY,  J. : 

The  testator,  Valentine  Mott,  was,  during  his  life,  the  owner  of 
the  land  on  both  sides  of  the  lane  from  beginning  to  end,  which 
forms  part  of  some  of  the  lots  bought  by  the  petitioner,  and  had  been 
in  possession  thereof  as  owner  for  more  than  thirty  years  prior  to 


MOTT  v.  MOTT.  477 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

hi«  death.  The  lane  was  an  easement  created  for  adjoining  owners, 
and  as  between  them  it  could  not  be  changed  in  its  character  or 
design.  When  the  several  owners  yielded  their  estates  bordering 
upon  it,  they  centered  in  one  person ;  the  servierit  character  was 
subject  to  his  will.  He  might  use  it  or  not,  for  the  purpose  orig- 
inally designed,  as  he  thought  proper.  It  was  not  a  public  but  a 
private  road  or  lane,  leading  from  the  Bloomingdale  road  to  the 
Apthorpe  or  De  Peyster  mansion,  and  when  the  earlier  grantors 
regarded  and  projected  it  by  provisions  in  the  deed,  it  was  not  to 
reserve  in  themselves,  or  their  heirs,  any  estate  in  it,  but  to  secure 
it  as  a  necessary  way  or  easement  for  the  benefit  of  the  owners 
along  its  line.  Thu  is  evidenced  by  the  provision  contained  in  the 
deed  from  Charles  Apthorpe  to  Clarkson,  to  the  effect  that  the 
latter  would  always  bear  and  pay,  in  common  with  the  former  and 
his  heirs  and  assigvu,  the  expense  of  keeping  the  lane  in  proper 
repair. 

There  can  be  no  doubt  that  when  property  thus  conveyed  is 
united  in  one  person,  even  though  several  parcels  are  described  as 
commencing  at  or  running  to  the  side  of  the  private  road,  or  lane, 
the  fee  to  the  center  of  the  way  passes  from  the  grantors.  (Bissell 
v.  N.  T.  C.  R.  R.  Co.,  23  N.  Y.,  61 ;  Perrin  v.  N.  T.  C.  R.  R. 
Co.,  36  id.,  120;  Corning  v.  Gould,  16  Wend.,  531.)  To  hold 
otherwise  would,  in  effect,  be  to  declare  that  a  man  could  not  close 
a  private  road  or  lane  running  through  his  land,  although  it  was 
made  with  express  reference  to  and  for  such  land,  and  although  he 
has  secured  by  grant  the  use  of  it  in  perpetuity,  and  although  it 
formed  a  part  of  the  estate  to  which  it  was  an  incident. 

The  original  grantors  could  not  claim  any  interest  in  the  bed  of 
the  land  or  private  road,  because  it  is  evident  that  the  grants  by 
them  were  not  intended  to  withhold  the  absolute  title  to  the  center 
vf  the  lane  or  road,  except  so  far  as  to  secure  the  use  of  its  bed  for 
the  purpose  mentioned,  as  long  as  the  several  owners  required  it. 
Questions  of  boundary  are  to  be  determined  by  the  palpable  inten- 
tion of  the  parties  as  it  appears  from  all  the  circumstances. 
(Perrin  v.  N.  Y.  C.  R.  R.  Co.,  supra.} 

The  sale  of  the  adjoining  land,  by  the  several  owners,  was  a  sur- 
render of  the  right  and  an  abandonment  of  the  use  of  the  lane  to 
the  grantee,  to  be  employed  by  him  or  not  as  he  pleased.  (Bissell 


478  MOTT  v.  MOTT. 


FIRST  DEPARTMENT,  OCTOBER  TERM,  18T6. 


T.  N.  T.  C.  R.  R.t  supra.)  The  purchase  of  the  whole  land 
adjoining  made  the  purchaser  muster  of  the  whole  tract.  He 
became  the  owner  of  the  whole  of  the  dominant  estate  to  which  the 
servitude  or  easement  was  due.  (Case  supra.)  He  closed  the  lane 
and  used  it  as  a  pasture  ground,  and  rented  the  use  of  it  It  a 
right  of  way  be  from  the  close  of  A.  to  the  close  of  B.,  and  both 
closes  be  united  in  the  same  person,  the  right  of  way  as  well  as  all 
other  subordinate  rights  and  easements,  is  extinguished  by  unity  of 
possession.  (3  Kent,  423  [marginal  paging].)  In  the  case  of 
Bissell  v.  N.  T.  G.  R.  R.  Co.,  in  which  it  appeared  that  the 
grantor  had  laid  out  a  plot  of  land  in  lots  and  a  street,  which  was 
used  as  access  to  them,  the  lots  being  bounded  on  the  street,  Justice 
MASON  said  :  "There  is  no  more  reason,  it  seems  to  me,  to  infer 
an  intention  in  the  grantor  to  withhold  his  interest  in  or  title  to 
the  land  covered  by  the  street,  after  parting  with  all  his  right  and 
title  to  the  adjoining  land,  than  there  is  in  the  case  of  a  deed 
bounded  by  a  public  highway."  Indeed  the  object  of  the  reserva- 
tion considered  in  this  case  with  regard  to  the  intention  of  the 
grantors  gathered  from  the  surrounding  circumstances,  appears  to 
have  been  only  to  secure  the  use  of  the  lane  for  the  owners  on  its 
line  so  long  as  it  was  necessary  for  or  demanded  by  them,  and  it  is 
not  well  to  be  questioned  that  there  is  in*  uistinction  to  be  drawn 
between  the  lane  under  consideration,  and  the  street  in  the  case  of 
Bitsell  v.  N.  Y.  C.  R.  R.  Co.,  which  was  used  for  a  purpose 
similar  to  that  which  caused  the  laying  out  of  the  lane.  The  object 
secured  by  it  has  ceased,  both  as  a  convenience  and  necessity,  and 
there  is  neither  of  these  elements  in  favor  of  the  continuance  of  it. 

Why  should  the  grantors,  having  parted  with  all  the  adjoining 
land,  be  permitted  now  to  claim  a  fee  in  the  bed  of  the  land,  against 
the  undoubted  intention  of  the  grants  to  part  from  all  interest  in 
it  when  they  sold  the  adjoining  land  ? 

Is  it  not  clear  that,  as  between  themselves  and  their  grantees,  they 
intended  to  convey  to  the  center  of  the  lane,  as  declared  in  Bissell 
v.  N.  Y.  C.  R.  R.  Co.  f  These  interrogatories  seem  to  admit  of 
but  one  answer.  The  objection  discussed  is  therefore  of  no  avail  to 
the  petitioner. 

The  further  objection  to  the  title  to  lots  four  and  thirteen,  forming 
part  of  the  Bloomingdale  road,  proves  valueless,  because  the 


DUNPHY  u.  MAYOR.  479 

FIBST  DEPARTMENT,  OCTOBEB  TERM,  1876. 

respondent  did  not  sell  any  more  than  the  right,  title  and  interest 
of  the  testator  and  his  representatives  in  them.  They  claimed  an 
interest  in  them  under  a  conveyance  and  the  provision  of  the  act 
of  1867  (chap.  697),  granting  the  fee  of  the  road  to  adjoining 
owners,  and  it  was  that  interest  which  the  petitioner  bought.  He 
was  bound  by  his  bid.  If  he  desired  to  know  what  the  interest  was, 
the  information  should  have  been  demanded  at  the  sale.  Having 
chosen  to  buy,  without  that  or  an  examination  for  himself,  he  takes 
the  consequences. 

It  is  manifest  that  the  order  made  at  Special  Term  was  correct, 
and  it  must  be  affirmed. 

DAVIS,  P.  J.,  and  DANIELS,  J.,  concurred. 
Order  affirmed. 


JAMES  DUNPHY,  RESPONDENT,  v.  THE  MAYOR,  Em,  OF 
THE  CITY  OF  NEW  YORK,  APPELLANTS. 

Board  of  supervisors  of  New  York  —  power  to  appoint  deputy  clerk  — appropriation 

for  payment  of. 

The  board  of  supervisors  of  the  county  of  New  York  appointed,  in  1860,  a  deputy 
to  their  clerk,  and  in  1864  fixed  his  salary  at  $4,000  per  year,  appropriations 
for  the  payment  of  which  were  made  by  the  legislature  in  each  year  from  1860 
to  1870.  Chapter  190  of  1870,  creating  a  new  board  of  supervisors,  provided  that 
all  officers  and  subordinates  of  the  existing  board  holding  office  or  place  therein, 
should  continue  in  their  respective  offices  and  places,  subject  to  removal  for 
misconduct  and  authorized  the  new  board  to  fill  vacancies.  Held,  that  although 
there  was  no  statute  authorizing  the  old  board  to  appoint  a  deputy  clerk,  yet  the 
acts  of  the  legislature  annually  appropriating  money  for  the  payment  of  hia 
salary,  and  the  act  of  1870,  conferred  such  authority  upon  the  new  board. 

The  plaintiff  was  appointed  first  deputy  clerk  of  the  board  in  January,  1872,  and 
continued  to  perform  the  duties  of  his  office  until  May,  1873.  No  appropria- 
tion for  the  payment  of  his  salary  was  made  by  the  board  of  apportionment, 
crested  by  chapter  588  of  1871,  for  the  year  1872  and  the  first  four  months  of 
1878.  In  this  action,  brought  by  the  plaintiff  to  recover  the  amount  of  his 
•alary  for  this  period,  the  defendant  insisted  that  the  absence  of  an  appropria- 
tion for  its  payment  relieved  it  from  all  liability  under  section  5  of  chapter  588 
of  1871,  providing  that  no  liability  should  be  incurred  hy  the  officers  of  th« 


480  DUNPHY  v.  MAYOR. 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

county,  for  any  purpose  whatsoever,  exceeding  the  amount  of  the  appropriation 
made  for  that  purpose.  Held,  that  as  the  duration  of  the  plaintiffs  office  was 
not  prescribed  by  law,  and  as  the  board  had  power  to  terminate  the  same,  its 
action  in  continuing  to  employ  him,  after  it  was  known  that  no  appropriation 
had  been  made  wherewith  to  pay  his  salary,  was  a  violation  of  section  5  of 
chapter  588  of  1871,  and  that  the  defendant  was  not  liable  for  the  debt  so 
incurred.  (BRADY,  J.,  dissenting.) 

APPEAL  from  a  judgment  in  favor  of  the  plaintiff,  entered  on  the 
trial  of  this  action  by  the  court,  without  a  jury,  in  an  action  brought 
by  plaintiff  to  recover  his  salary  as  first  deputy  clerk  to  the  board 
of  supervisors  of  the  county  of  New  York. 

John  H.  Strahan,  for  the  respondent. 
D.  J.  Dean,  for  the  appellants. 

DAVIS,  P.  J. : 

The  plaintiff  was  appointed  to  the  office  of  first  deputy  clerk  of 
the  board  of  supervisors,  by  a  resolution  of  that  board,  adopted  on 
the  28th  of  December,  1871,  to  take  effect  on  the  1st  of  January, 
1872.  He  continued  to  perform  the  duties  of  the  office  until  the 
1st  of  May,  1873.  The  salary  was  fixed  by  the  resolution  of  the 
board  of  supervisors,  adopted  in  1864,  at  $4,000  per  annum,  and 
that  sura  had  been  paid  to  the  plaintiff's  predecessor  up  to  the  date 
of  the  plaintiff's  appointment.  The  salary  was  payable  in  monthly 
installments,  but  nothing  has  been  paid  to  the  plaintiff.  Two 
points  are  made  by  the  appellant.  1.  That  the  supervisors  were 
not  authorized  by  law  to  employ  a  deputy  clerk ;  and,  2.  That  the 
supervisors  had  no  power  to  incur  any  expense  for  the  salary  of 
the  deputy  clerk  in  the  years  1872  and  1873,  because  no  money 
was  appropriated  for  the  salary  of  such  officer  during  said  years. 
As  to  the  first  of  these  points,  it  may  be  said  that  under  the 
provisions  of  the  Revised  Statutes,  the  board  of  supervisors 
had  power  only  to  appoint  the  clerk,  and  none  to  appoint  deputy 
or  assistant  clerks.  It  appears,  however,  that  prior  to  1864,  and 
as  early  perhaps  as  1860,  the  board  of  supervisors  appointed  a 
deputy  clerk,  and  that  in  1864  the  board  fixed  his  salary,  by 
resolution,  at  $4,000  per  annum,  and  continued  such  appoint- 
ment from  year  to  year,  down  to  and  including  the  time  at  which 
the  respondent  was  appointed.  Appropriations  to  pay  the  salary 


DUNPHY  v.  MAYOR.  481 

FIKST  DEPARTMENT,  OCTOBER  TERM,  1876. 

ot  such  deputy  were  made  annually  by  the  legislature  for  a 
period  of  ten  years,  as  appears  by  the  Session  Laws  of  such  years, 
from  1860  to  1870,  both  inclusive.  (Chap.  509,  Laws  of  1860; 
chap.  240,  Laws  of  1861;  chap.  452,  Laws  of  1862;  chap.  108, 
Laws  of  1863 ;  chap.  404,  Laws  of  1864 ;  chap.  605,  Laws  of  1865 ; 
chap.  837,  Laws  of  1866;  chap.  806,  Laws  of  1867;  chap.  854, 
Laws  of  1868 ;  chap.  875,  Laws  of  1869,  and  chap.  382,  Laws  of 
1870.) 

By  chapter  190  of  the  Laws  of  1870,  the  legislature  created  for 
the  county  of  New  York  a  new  board  of  supervisors,  and  by  section 
10  of  that  chapter  declared  that  "  all  officers  and  subordinates  of  the 
existing  board  of  supervisors,  which  would  be  superseded  by  the 
board  constituted  by  this  act,  and  which  may  severally  be  holding 
any  office  or  place  in  the  superseded  board,  shall  continue  in  their 
respective  offices  and  places,  subject  to  removal  for  misconduct. 
Whenever  any  vacancy  occurs  in  said  transferred  and  continued 
office  and  place,  it  shall  be  filled  by  the  board  of  supervisors  hereby 
constituted."  These  various  statutes,  by  necessary  implication,  we 
think,  must  be  held  to  have  conferred  upon  the  board  of  supervisors 
the  power  to  appoint  a  deputy  clerk.  A  vacancy  occurred  in  that 
office  by  the  resignation  of  the  incumbent  on  the  28th  of  December, 
1871  ;  to  fill  which  vacancy  the  respondent  was  appointed.  We 
are  of  opinion  that  the  appointment  was  legal. 

In  relation  to  the  second  point,  it  is  to  be  observed  that  the  com- 
pensation of  the  deputy  clerk  was  not  one  fixed  by  law,  but  was 
wholly  dependent  upon  the  resolution  passed  by  the  board  of  super- 
visors for  its  amount ;  and  for  its  payment  upon  appropriations  to  be 
made  from  year  to  year  by  the  legislature  or  other  competent 
authority. 

No  appropriation  for  the  payment  of  the  salary  of  the  deputy 
clerk  of  the  board  of  supervisors  was  made  by  the  legislature  of 
the  State  for  the  year  1872  or  the  year  1873.  By  chapter  583  of 
the  Laws  of  1871,  the  board  of  apportionment  of  the  city  of  New 
Tt  ork  was  authorized  to  determine  the  amount  to  be  expended  for 
each  object  of  public  expense,  and  to  determine  the  amount  to  be 
raised  by  taxes,  and  to  distribute  the  same  amongst  the  departments 
or  officials  authorized  to  incur  debts.  It  was  clearly  the  intention 
of  the  legislature  by  that  act,  that  the  amount  of  salaries  should  be 
HUN— VOL.  VIII.  61 


482  DUNPHY  v.  MAYOR. 

FIBST  DEPARTMENT,  OCTOBER  TERM,  1876. 

controlled  and  limited  by  the  board  of  apportionment,  in  so  far  a> 
they  were  not  fixed  by  statutes  regulating  the  salaries  of  office 
elected  by  the  people,  or  whose  appointment  was  not  within  tlu 
discretion  of  local  bodies  or  officers. 

Section  5  of  chapter  583  of  the  Laws  of  1871,  provided  that  m- 
liability,  for  any  purpose  whatsoever,  should  be  incurred  by  the 
officers  of  the  county  of  New  York  exceeding  the  amount  of  the 
appropriation  made  for  that  purpose.  It  appears  that  the  board  of 
apportionment  appropriated  for  the  clerk  of  the  board  of  super 
visors  for  the  year  1872  the  sum  of  $5,000,  which  was  the  amount 
of  his  salary  as  fixed  by  the  resolution  of  1864,  and  that  they 
made  an  appropriation  for  the  first  four  months  of  1873,  for  such 
clerk,  at  the  rate  of  $5,000  per  annum.  No  appropriation  was 
made  in  either  year  for  the  payment  of  the  deputy  clerk.  Nothing 
was  paid  to  the  respondent,  and  as  his  salary  was  payable  monthly 
he  must  be  deemed  to  have  had  notice,  at  least  as  early  as  the 
expiration  of  the  first  month  of  the  year  1872,  and  at  the  expira- 
tion of  each  successive  month  during  the  period  he  held  the  office, 
that  no  appropriation  to  pay  the  salary  of  his  office  had  been  made, 
and  that  payment  was  refused  to  him  for  that  reason.  He  con- 
tinued, however,  to  hold  the  office  and  perform  its  duties  taking  the 
chances  of  being  able  to  enforce  payment  of  his  salary,  notwith- 
standing the  board  of  apportionment  had  made  no  appropriation 
for  such  purpose.  It  appears  very  clearly  that  the  amount  appro- 
priated by  that  body,  authorized  by  law  to  perform  that  function,  for 
the  payment  of  clerical  duties  in  the  board  of  supervisors  was  fixed 
and  limited  at  $5,000,  and  the  question  is  simply,  whether  the  board 
of  supervisors  had  power  to  incur  any  liability  beyond  that  sum, 
by  continuing  in  office  a  deputy  whose  compensation  was  not  and 
could  not  be  met  out  of  the  sum  so  fixed  by  the  board  of  appor- 
tionment. To  us  it  seems  clear  that  their  act  in  so  doing  was  the 
incurring  of  a  liability  exceeding  the  amount  of  the  appropriation 
made  for  the  purpose  for  which  it  was  incurred  ;  or,  in  short,  that 
it  was  doing  an  act  necessarily  inhibited  by  the  provisions  of  jaw 
above  referred  to.  It  is  supposed  by  the  learned  counsel  for  the 
respondent  that  this  question  has  been  disposed  of  by  the  courts  in 
Quinn  v.  The  Mayor  (63  Barb.,  595) ;  Kessler  v.  The  Mayor  : 
The  People  ess  rel.  Monheimer  v.  Green;  Monheirner  v.  The 


DUN  PHY  v.  MAYOR.  483 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

Mayor,  and  Macgowan  v.  The  Mayor,  and  the  learned  court 
below  appears  to  have  been  controlled  by  the  decision  of  the  Court 
of  Appeals  in  Costello  v.  The  Mayor  and  Kessler  v.  The  Mayor 
(not  yet  reported).  We  think  these  cases  are  clearly  distinguishable 
from  the  present  case  in  this  important  particular:  they  were  for 
the  recovery  of  salaries  or  fees  fixed  by  statute,  and  which  could 
not  be  changed  by  the  board  of  apportionment  because  not  within 
their  jurisdiction.  They  were  liabilities  not  incurred  or  to  be 
incurred  by  the  action  of  any  of  the  officers  of  the  county,  but 
by  the  necessary  operation  of  law  over  which  such  officers  had  no 
control.  In  this  case  the  liability  was  the  result  of  an  express 
employment  or  appointment  by  the  board  of  supervisors  for  the 
performance  of  duties,  for  which  another  officer  was  provided  by 
statute.  Such  appointment  was  discretionary  and  not  compulsory. 
The  duration  of  the  office  was  neither  prescribed  by  the  Constitu- 
tion nor  declared  by  law,  and  the  office  was,  therefore,  held  by 
express  provision  of  statute  "  during  the  pleasure  of  the  authority 
making  the  appointment."  (1  Rev.  Stat,  p.  107,  §  8  [Edm.  ed.].) 
The  power  to  terminate  the  office  rested  with  the  board  of  supervisors, 
and  the  incurring  of  the  liability  for  the  salary,  after  it  was  known 
to  that  body  that  no  appropriation  therefor  was  made,  was  a  vol- 
untary and  unwarranted  violation  of  the  restrictions  imposed  upon 
them  by  the  act  of  1871.  It  was  an  expense  within  their  control, 
and  in  the  absence  of  an  appropriation,  the  law  devolved  upon  them 
the  plain  duty  to  stop  it ;  and  for  courts  to  adjudge  a  recovery  is 
to  sanction  a  violation  of  law. 

If  the  respondent  would  be  entitled  to  recover  for  services  up 
to  the  time  when  the  board  of  apportionment  refused  to  make  any 
appropriation  for  such  services,  it  seems  to  us  there  can  be  no 
greater  recovery  unless  we  hold  that  the  restrictive  statute  is  not 
applicable  to  this  case,  or  that  the  board  of  supervisors  had  power 
to  override  its  provisions,  notwithstanding  the  clearly  expressed 
will  of  the  legislature. 

"We  think  there  should  be  a  new  trial,  with  costs  to  abide  the  event. 

BBADT,  J.  (dissenting) : 

The  office  held  by  the  plaintiff  was  one  in  existence  at  the  time 
of  the  passage  of  the  act  of  1871  (chap.  583),  and  no  liability  was 


484  FELLOWS  v.  MAYOR. 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

created  or  incurred  by  continuing  him  in  his  position  made  legal 
by  acts  of  the  legislature.  The  liability  already  existed  and  it  wag 
the  duty  of  the  board  of  apportionment  to  provide  for  the  salary. 

The  omission  to  do  so  should  not  prejudice  him.  If  the  city 
prevail  herein  on  such  a  theory  it  takes  advantage  of  its  own 
wrong.  It  was  properly  said  by  DANIELS,  J.,  when  an  application 
was  made  by  the  plaintiff  for  a  mandamus:  "So  much  of  the 
salaries  as  would  accrue  and  become  payable  in  any  one  year 
ought,  under  the  provisions  of  the  law  relating  to  that  year,  to  have 
been  included  in  the  estimate  made  for  its  expenses.  That  was 
plainly  the  duty  of  the  officials  required  to  make  those  esti- 
mates." And  further :  "  It  was  to  supply  the  omission  arising 
out  of  that  neglect  that  the  present  proceedings  were  instituted.' 
If  the  office  held  by  the  plaintiff  had  been  created  after  the  esti- 
mates were  made  it  would  present  a  case  contemplated  by  the  act 
of  1871. 

I  think  the  judgment  should  be  affirmed. 

Present  —  DAVIS,  P.  J.,  BRADY  and  DANIELS,  JJ. 

Judgment  reversed,  new  trial  ordered,  costs  to  abide  the  event. 


JOHN  R.  FELLOWS,  RESPONDENT,  v.  THE  MAYOR,  ETC.,  OF 
THE  CITY  OF  NEW  YORK,  APPELLANTS. 

Atsutanl  district  attorney  of  New  York  —  State  officer  —  ialary  of. 

The  assistant  district  attorney  of  the  county  of  New  York  is  an  officer  of  the  State 
government,  and  not  of  that  county,  and  the  board  of  apportionment  created 
by  chapter  583  of  1871,  "to  regulate  all  salaries  of  officers  and  employes  of  the 
city  and  county  governments  "  had  no  power  to  reduce  his  salary. 

Where  a  provision  establishing  the  salary  of  the  assistant  district  attorney  of  the 
county  of  New  York  was  contained  in  an  act  entitled  "An  act  to  make  further 
provision  for  the  government  of  the  county  of  New  York,"  held,  that  the  pro- 
vision was  local  as  it  affected  the  salary  of  the  officers  in  a  particular  county 
imly,  yet  that  the  title  of  the  act  sufficiently  expressed  the  subject. 

APPEAL  from  a  judgment  in  favor  of  the  plaintiff,  entered  on  the 
rerdic1.  of  a  jury,  in  an  action  brought  by  the  plaintiff  to  recover  a 


FELLOWS  v.  MAYOR.  485 

FERST  DEPARTMENT,  OCTOBER  TERM,  1876. 

balance  alleged  to  be  due  him  for  his  salary  as  assistant  district 
attorney  for  the  county  of  New  York. 

Francis  Lynde  Stetson,  for  the  appellants. 
Cha/rles  E.  Miller,  for  the  respondent. 

BRADY,  J. : 

The  question  presented  in  this  case  is,  whether  the  plaintiff  was 
or  was  not  a  State  officer  while  holding  the  position  as  assistant 
district  attorney.  It  is  conceded  that  the  district  attorney  is  a  State 
officer.  It  could  not  well  be  questioned.  (Rev.  Stat.,  vol.  1,  p.  96 
[Edm.,  vol.  1,  p.  98,  §  15J.)  The  plaintiff  was  appointed  by  that 
officer  under  the  provisions  of  the  Revised  Statutes  authorizing  the 
appointment  of  all  assistants,  etc.,  by  the  body,  board  or  officer  by 
which  or  to  whom  they  shall  be  respectively  subordinate,  in  all 
cases  in  which  the  appointment  is  not  specially  provided  for.  (1  Rev. 
Stat.,  116,  §  5.)  The  salary  of  the  district  attorney  is  fixed  by 
the  supervisors  and  paid  by  the  county.  (§  3,  chap.  441,  Laws  1851.) 
In  1868  (chap.  854,  Laws  1868,  p.  2025)  the  legislature  recognized 
the  assistant  district  attorneys  in  the  act  making  provision  for  the 
government  of  the  county  of  New  York,  and  limited  the  number 
from  the  1st  January,  1868,  to  three. 

Their  duties  in  this  county  are  not,  it  would  seem,  specifically 
set  forth  by  statute,  but  they  are  sufficiently  known  and  defined 
here  to  warrant  this  court  in  taking  judicial  notice  of  them.  The 
statutes  in  reference  to  these  officers  do  not  always  state  the 
duties.  (See  Laws  1857,  chap.  409 ;  Laws  1866,  chaps.  8,  734 ; 
Laws  1872,  chap.  587.)  The  latter  act  provides  that  these  officers 
are  to  take  the  constitutional  oath  of  office,  attend  all  criminal 
courts,  assist  in  all  prosecutions  for  crimes  and  offenses,  appear 
before  grand  juries,  and  perform  the  same  duties  before  juries  as 
are  by  law  imposed  upon  the  district  attorneys.  The  act  does  not, 
however,  apply  to  this  county,  its  design  being  to  create  such  officers 
in  counties  with  a  population  over  70,000,  and  not  to  affect  counties 
tfhere  the  appointment  of  assistants  was  then  authorized  by  law. 
The  powers  thus  conferred  upon  the  officers  named  are  those  which 
are  exercised  by  the  assistants  in  this  county,  and  their  services,  iu 


486  FELLOWS  v.  MAYOR. 

FIBST  DEPARTMENT,  OCTOBER  TERM,  1876. 

consequence  of  our  large  population,  and  the  numbers  of  criminals* 
who  come  within  the  borders  of  our  city,  from  places  too  numerous 
to  mention,  are  not  only  valuable  but  indispensable.  They  arc- 
connected  with  and  make  a  part  of  the  department  of  an  officer  of 
the  State,  connected  with  its  judicial  system,  and  performing  many 
of  his  duties,  with  the  same  eftect  as  if  he  discharged  them 
personally.  They  are  his  assistants,  and  not  officers  of  the  city  or 
county. 

It  is  true  that  the  salary  given  them  is  paid  by  the  county,  but 
this  does  not  convert  them  into  county  officers,  any  more  than  the 
payment  of  the  salary  of  the  district  attorney  makes  him  such  an 
officer.  They  are,  it  may  be  said,  no  less  district  attorneys  because 
called  assistants.  They  help  to  discharge  the  duties  of  the  office, 
to  administer  the  criminal  laws.  (See  People  ex  rel.  Buckley  v. 
Benton,  29  N.  Y.,  534.)  When  provision  is  made  for  the  govern- 
ment of  the  county  of  New  York,  the  salary  of  these  officers  being 
a  part  of  it,  in  virtue  of  their  office,  and  the  relation  it  bears  to  the 
department  to  which  they  belong,  is  ex  necessitate  included.  They 
were  not,  therefore,  within  the  provisions  of  chapter  583  of  the 
Laws  of  1871,  authorizing  (§  3)  the  board  of  apportionment  to 
regulate  all  salaries  of  officers  and  employes  of  the  city  and  county 
governments.  The  classes  subject  to  this  provision  are  thus  cor- 
rectly described  by  Judge  MONELL  :  "  The  officers  whose  salaries 
were  brought  within  the  regulating  power  of  the  board  of  appor- 
tionment, were  intended  to  be  such  as  formed  a  part  of  the  political 
government  of  the  city  and  county,  and  who  were  connected 
with  the  executive  or  legislative  departments,  and  not  such  as  were 
a  part  of  the  judicial  system  of  the  State  ;  otherwise,  the  legisla- 
ture would  not  have  limited  it  to  officers  of  the  government,  but 
would  have  extended  it  to  all  officers  whose  salaries  were  paid  out 
of  the  city  or  county  treasury.  (Landon  v.  The  Mayor,  49  H>\\ 
Pr.,  218  ;  see,  also,  Whitmorev.  The  Mayor,  12  S.  C.  N.  Y.  [5  Hun], 
195.)  There  is  no  force  in  the  suggestion  that,  unless  the  plaintiff 
was  connected  with  the  county  government,  his  salary  was  never 
legally  fixed  at  the  rate  of  $10,000.  He  was  connected  with  the 
jounty  government.  This  canmt  be  disputed,  but  it  was  in  rela- 
tion to  the  judicial  system  of  the  State  that  he  was  thus  connected, 
in  the  same  manner  as  his  superior  officer,  the  district  attorney,  is. 


FELLOWS  v.  MAYOR.  487 

FIBST  DEPARTMENT,  OCTOBER  TERM,  1876. 

The  salary  of  the  latter  has  always  been  paid  by  the  city  or 
county.  (See  1  R.  S.,  383,  §  95  ;  act  of  1851,  supra.)  This  case  ii 
not  analogous,  therefore,  to  the  case  of  Dolan  v.  The  Mayw  (13  S. 
<J.  N.  Y.  [6  Hun],  506).  The  employment  of  the  plaintiff  in  that 
case  was  by  authority  of  the  county.  In  this  case  the  employ- 
ment was  by  authority  of  the  legislature.  The  judgment  is  right, 
and  should  be  affirmed. 

Ordered  accordingly,  with  costs. 

DAVIS,  P.  J. : 

Both  of  my  brethren  have  given  this  case  very  full  and  elaborate 
consideration.  It  is  only  necessary  that  I  should  assign,  briefly, 
my  reasons  for  concurring  in  the  result  reached  by  my  brother 
BBADT. 

First.  It  is  very  clear  that,  by  "  statute,  the  district  attorney 
of  the  city  and  county  of  New  York  is  not  an  officer  of  the 
county  government,  but  a  State  officer "  and  the  fact  that  his 
compensation  is  payable  out  of  the  treasury  of  the  county  makes 
no  difference  with  his  legal  status  in  that  respect.  The  respondent 
was  an  assistant  district  attorney.  The  functions  and  duties  of  hia 
office  were  the  same  as  those  of  the  district  attorney.  He  was  not 
appointed  nor  was  he  removable  by  any  officer  or  board  of  the 
county  government,  but,  in  the  absence  of  any  statute  directing 
the  mode  of  his  appointment  or  removal,  the  district  attorney  was 
clothed,  by  a  general  provision,  with  full  power  over  that  subject. 
(1  R.  S.,  116.)  The  existence  of  his  office  has  been  recognized  in 
several  statutes.  (Laws  of  1868,  chap.  854;  Laws  of  1870,  chap. 
382.)  His  salary  was  fixed  by  the  legislature  by  the  introduction 
into  chapter  382  of  the  Laws  of  1870  (in  the  legerdemain  form  of 
legislation  then  much  in  use),  of  a  provision  declaring  that  "  the 
assistant  district-attorneys  of  said  county  shall  receive  the  same 
annual  salary  as  that  now  paid  to  the  city  judge,"  which  happened 
then  to  be  the  sum  of  $10,000  per  annum.  The  board  of  appor- 
tionment, by  the  third  section  of  the  act  entitled  u  An  act  to  make 
provision  for  the  local  government  of  the  city  and  county  of  New 
York,"  passed  April  19,  1871  (chap.  583  of  the  Laws  of  1871), 
were  empowered  to  regulate  all  salaries  of  officers  and  employes  of 
the  city  and  county  of  New  York,  and  that  board,  by  resolution, 


488  FELLOWS  v.  MAYOR. 


FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

passed  May  15,  1871,  resolved  that  such  salaries  be  reduced  at  the 
rate  of  twenty  per  cent  per  aimum,  to  take  effect  on  the  first  day 
of  June,  1871.  The  power  given  by  the  act  only  applied  to  the 
salaries  of  officers  and  employes  of  the  city  and  county  govern- 
ments. The  board  had,  therefore,  no  authority  over  officers  of  the 
State  government,  whether  their  duties  were  local  to  the  county  or 
their  salaries  paid  out  of  the  county  treasury  or  riot.  Whether  an 
office  is  one  of  the  county,  or  of  the  State  government  is  purely  a 
question  depending  upon  its  classification  by  law.  I  think  it  is 
manifest,  under  the  statute  above  referred  to,  that  the  district 
attorney  himself  is  an  officer  of  the  State  government.  He  is 
classified  among  the  judicial  officers  of  the  State,  and  no  reason 
exists  for  holding  that  his  assistants,  who  possess  the  same  functions 
and  perform  the  same  duties,  should  not  be  classified,  by  operation 
of  the  same  statute,  in  the  same  manner.  They  do  not  belong  to 
nor  form  any  part  of  the  county  government,  but  take  rank  as 
officers  of  the  State  government  for  the  purpose  of  enforcing  the 
laws  of  the  State  within  their  territorial  jurisdiction.  vThe  mode 
in  which  their  salaries  are  to  be  paid,  and  the  location  in  which 
their  duties  are  to  be  performed,  are  mere  incidents  neither  defin- 
ing nor  affecting  their  legal  status  as  public  officers.  Hence  the 
fact  that  the  statute  gave  the  board  of  apportionment  power  to 
regulate  the  salaries  of  officers  and  employes  of  the  city  and  county 
of  New  York,  did  not  affect  the  respondent,  because  he  was  neither 
an  officer  nor  an  employe  of  the  city  or  county  government. 

Secondly.  It  is  argued  that  if  this  be  so,  the  salary  of  the  res- 
pondent was  not  lawfully  increased  by  the  act  of  1870,  but  remains 
as  previously  fixed  by  the  board  of  supervisors,  and  therefore  no 
recovery  can  be  had.  This  question  hinges  upon  the  constitutional 
power  of  the  legislature  to  enact  the  provision  above  recited  as 
part  of  a  local  act,  entitled  "  An  act  to  make  provision  for  the 
government  of  the  county  of  New  York."  Although  the  assistant 
district  attorneys  are  officers  of  the  State  government,  yet  a  provi- 
sion of  law  affecting  the  salary  of  such  officers  in  a  particular  county 
is  local  and  not  general  legislation,  and  therefore  it  is  obnoxious  to 
the  constitutional  inhibition,  unless  it  is  fairly  within  the  subject 
embraced  in  the  title  of  the  act.  A  general  provision  affecting 
all  the  district  attorneys  or  assistant  district  attorneys  of  the  State 


FELLOWS  v.  MAYOR.  489 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

would  be  a  general  law  and  its  inclusion  in  a  local  bill  would  not, 
within  the  decisions  of  the  Court  of  Appeals,  render  it  unconstitu- 
tional. In  The  People  v.  McCann  (16  N.  Y.,  58),  the  court  held 
that  general  provisions  are  not  rendered  void  by  reason  of  their 
being  contained  in  some  act  with  other  provisions  of  merely  local 
application,  although  the  title  refers  to  the  latter  provisions  only, 
and  this  decision  was  reiterated  in  Williams  v.  The  People  (24  N. 
Y.,  405).  But  the  provision  in  question  only  affects  officers  of  a 
particular  locality,  and  therefore  must  be  deemed  local  in  its 
character. 

The  Constitution  requires  that  the  subject  only  of  a  local  act  shall 
be  expressed  in  the  title,  and  not  its  objects  or  details.  I  think 
the  subject,  as  expressed  in  the  title  of  this  act,  does  embrace  the 
object  covered  by  the  provision  under  consideration.  The  subject 
of  the  act  is  the  making  of  provision  for  the  government  of  the 
county  of  New  York.  It  is  part  of  the  objects  of  that  government, 
to  raise  money  and  apply  the  same  to  the  payment  of  the  salaries 
of  such  of  the  officers  of  the  State  government,  who  reside  and  per- 
form their  function  within  the  county,  as  the  legislature  have  seen 
fit  to  require  to  be  paid  by  the  county.  Hence  the  act  making 
provision  for  the  government  of  the  county  may  properly  embrace 
provisions  for  raising  money  to  pay  such  salaries  and  directions 
declaring  their  amount. 

I  think,  therefore,  the  law  which  increased  the  salary  was  not 
unconstitutional.  And  for  these  reasons  I  concur  in  the  conclu- 
sion of  my  brother  BRADY,  that  the  judgment  should  be  affirmed. 

DANIELS,  J.  (dissenting) : 

The  plaintiff  recovered  a  verdict  on  which  judgment  has  been 
rendered  for  the  unpaid  balance  of  his  salary  as  assistant  district 
attorney  of  the  county  of  New  York,  at  the  rate  of  $10,000  per 
year.  He  held  the  office  and  discharged  its  duties  from  the  1st  of 
January,  1872,  and  by  chapter  382,  of  the  Laws  of  1870,  entitled 
"  An  act  to  make  further  provision  for  the  government  of  the  county 
->f  New  York,"  it  was  declared  that  the  assistant  district  attorney 
of  said  county  shall  receive  the  same  annual  salary  as  that  now 
paid  to  the  city  judge  "  (vol.  1,  Laws  of  1870,  chap.  382),  and  that  was 
conceded  to  be  the  sum  of  $10,000.  Bv  this  provision  the  assistant 
HUN— VOL.  VIII.  62 


490  FELLOWS  v.  MAYOR. 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

district  attorney  was  designated  an  officer  of  the  county,  from  which 
his  salary  was  to  be  received.  His  duties,  from  the  nature  of  the 
appointment  and  employment,  must  in  a  general  sense  have  been 
very  much  the  same  as  those  of  the  district  attorney  whose  assist- 
ant he  was.  That  would  be  the  effect  of  his  position  as  an  assistant 
•without  any  specific  legal  designation  declaring  it  in  terms.  To 
be  an  assistant,  without  any  restraint  concerning  the  extent  of 
assistance  to  be  rendered,  would  necessarily  imply  an  employment, 
for  all  practical  purposes,  as  broad  as  the  general  duties  of  the 
officer  to  be  assisted.  (People  v.  Benton^  29  N.  Y.,  534-538.)  And 
as  an  officer  of  the  county  whose  salary  was  payable  by  the  county, 
the  legislature  had  the  power  to  declare  the  extent  of  it,  in  an  act 
passed  for  the  sole  purpose  of  making  provision  for  the  support  of 
the  county  government. 

No  law  had  declared  the  office  any  more  than  an  office  of  the 
county.  In  that  respect  it  differed  from  that  held  by  the  district 
attorney  himself,  who  has  been  classified  among  officers  of  the  State 
for  the  county  in  which  the  office  is  held.  (1  R.  S.  [5th  ed.],  379.) 
And  the  legislature  could  very  well  provide  the  plaintiff's  office 
with  a  different  designation,  and  make  it  a  part  of  the  county  gov- 
ernment, as  it  substantially  did  by  the  reference  made  to  it  in  the 
law  of  1870,  advancing  the  salary.  The  duties  of  the  office  though 
general  were  still  local.  They  were  performed  in  and  about  the 
proceedings  of  the  courts  in  the  county  of  New  York,  its  powers 
and  functions  were  chiefly  to  be  exercised  in  the  county,  and  the 
services  performed  by  its  incumbent  paid  for  out  of  the  revenues 
of  the  county.  And  in  terming  it  an  office  of  the  county  and  pro- 
viding for  it  as  such  in  an  act  relating  only  to  the  county  govern- 
ment, the  legislature  must  have  understood  it  to  be  a  part  of  that 
government.  It  is  true  the  laws  to  be  enforced  by  the  officer  were 
generally  those  of  the  State,  but  in  that  respect  the  plaintiff  did 
not  differ  in  principle  from  other  county  officers,  who  are  all 
more  or  less  engaged  in  the  enforcement  and  execution  of  the 
laws  of  the  State. 

The  principle  affecting  this  case  in  this  respect  does  not  differ 
essentially  from  that  of  Huber  v.  People  (49  N.  Y.,  132),  in  which 
it  was  held  that  so  much  of  chapter  383  of  the  Laws  of  1870,  aa 
provided  for  the  reorganization  of  the  Court  of  Special  Sessions 


FELLOWS  v.  MAYOR.  491 

FIKST  DEPARTMENT,  OCTOBKE  TERM,  1876. 

was  unconstitutional,  because  that  court  was  a  local  subject,  and 
pro\  isions  concerning  it  could  not  be  united  in  the  same  act  with 
another  local  subject.  In  the  opinion  in  that  case  it  was  declared 
th&t  fc'An  act  regulating  the  duties  of  a  public  officer  under  the 
general  laws  of  the  State,  if  limited  in  its  operation  to  a  part  of 
the  State,  or  to  a  single  county,  is  local,  and  must  be  passed  in  the 
form  prescribed  by  the  Constitution,  although  the  subject-matter  of 
the  enactment  is  public,  and  affects  public  interests"  (id.,  135);  and 
the  case  of  People  v.  (.? Brien  (38  N.  Y.,  193),  in  which  so  much 
of  an  act  as  provided  for  the  term  of  office  and  the  time  of  electing 
councilmen,  was  held  to  be  in  contravention  of  the  provisions  of  the 
Constitution  relating  to  the  passage  of  local  laws,  because  it  had 
been  inserted  in  a  local  law  passed  to  enable  the  board  of  supervis- 
ors of  the  county  of  New  York  to  raise  money,  etc.,  was  referred  to 
ae  supporting  that  principle.  The  case  of  Gaskin  v.  Meek  (42  id., 
186),  in  which  an  act  was  held  void  because  it  was  proposed  by  it 
to  regulate  the  fees  of  both  the  sheriff  and  referee  in  the  city  and 
county  of  New  York,  was  also  cited  for  the  same  purpose.  In  both 
cases  the  acts  were  held  to  be  confined  to  local  subjects,  and  for 
that  reason  could  constitutionally  include  but  one,  which  was 
required  to  be  expressed  in  its  title.  The  case  last  referred  to  is 
entitled  to  much  weight  in  the  determination  of  the  present  con- 
troversy, for  it  related  in  part  to  the  fees  of  the  sheriff'  of  the 
county,  who  had  been  classified  among  the  State  officers  in  the  same 
terms  as  the  district  attorney  had,  and  by  the  same  statutory  pro- 
vision. (1  R.  S.  [5th  ed.],  379.)  If  the  office  of  the  sheriff  could 
properly  be  held  to  be  local  as  it  was  in  that  case,  surely  that  of 
the  plaintiff'  must  have  been  so.  The  act  of  1870  was  therefore  a 
local  law,  so  far  as  it  related  to  the  salary  of  the  plaintiff.  It  was 
to  pay  him  for  the  services  required  from  him  as  a  local  officer 
of  the  county,  which  it  in  terms  declared  him  to  be,  and  for  that 
reason  he  was  within  its  title,  which  was  to  make  further  pro- 
vision for  the  government  of  the  county  of  New  York.  If  he 
was  not,  then  it  follows  that  so  much  of  the  act  as  provided  for 
advancing  his  salary  was  not  constitutionally  enacted,  and  he  had 
no  right  whatever,  at  any  time,  to  demand  or  receive  it,  and  cannot 
now  recover  the  amount  claimed  by  him ;  but  as  he  was  a  county 
officer,  whose  salary  was  payable  from  the  county  revenues,  it  may 


492  FELLOWS  u.  MAYOR. 

FIBST  DKPAKTMKUT,  OCTOBKK  TEKM,  1876. 

be  reasonably  held,  that  the  advancement  of  the  amount  of  it  was 
incidental  to  the  general  subject  expressed  in  the  title  of  the  act, 
for  it  was  not  inappropriate  to  the  subject  of  making  provision  for 
the  support  of  the  county  government,  to  provide  at  the  same  time 
for  the  manner  in  which  its  revenues  should  be  expended.  (PeopU 
v.  Lawrence,  41  N.  Y.,  123,  139  ;  People  v.  Common  Council  of 
Rochester,  50  id.,  525 ;  People  v.  Briggs,  id.,  553 ;  Sullivan  v. 
Mayor,  etc.,  53  id.,  652 ;  Harris  v.  People,  59  id.,  599.)  And  it 
must  directly  follow  from  that  conclusion,  that  it  was  equally  within 
the  power  of  the  legislature  to  provide  again  for  the  reduction  of 
the  plaintiffs  salary  by  the  act  of  1871,  under  the  similar  title  of 
"An  act  to  make  provision  for  the  local  government  of  the  city 
and  county  of  New  York."  If  it  could  be  advanced  by  such 
an  act,  it  was  capable  of  being  reduced  in  the  same  way  (Dolan 
v.  Mayor,  12  S.  C.  N.  Y.  [5  Hun],  506) ;  but  that  was  not  done  by 
a  direct  provision  declaring  that  intent ;  it  was  provided  for,  if 
done  at  all,  in  a  general  way,  by  empowering  the  mayor  of  the  city, 
the  comptroller,  the  commissioner  of  public  works,  and  the  presi- 
dent of  the  department  of  public  parks,  as  a  board  of  apportionment, 
"  to  regulate  all  salaries  of  officers  and  employes  of  the  city  and 
county  governments."  (Laws  of  1871,  chap.  583,  §  3.)  The  power 
of  the  legislature  to  make  this  enactment  has  not  been  assailed,  or 
in  any  manner  denied,  but  it  has  been  urged  as  inapplicable  to  the 
case  of  the  plaintiff,  on  the  ground  that  he  was  not  an  officer  of  the 
county  government,  and  for  that  reason  alone  not  within  this  power 
conferred  upon  the  board  of  apportionment.  If  he  was  not  a 
county  officer,  then  his  salary  was  never  increased ;  for  it  was  only 
as  an  officer  of  the  county  government  that  it  could  be  constitu- 
tionally done  in  an  act  to  make  provision  for  that  government,  and 
if  he  was  then  an  officer  of  the  county  government,  he  must  have 
been  the  same  when  the  act  of  1871  was  enacted.  If  his  office  was 
included  within  the  terms  county  government,  when  the  first  ace 
became  a  law,  it  certainly  had  not  ceased  to  be  so  at  the  time  of  the 
passage  of  the  other.  By  the  first,  the  legislative  understanding  of 
what  the  office  was,  found  expression  in  plain  terms,  which  desig- 
nated it  as  an  office  of  the  county,  and  as  such  it  was  provided  for 
me  part  of  the  county  government.  The  terms  county  government 
•were  used  in  both  acts  as  expressive  of  the  same  subject-matter,  and 


FELLOWb  y.  MAYOR.  493 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

they  were  as  broad  in  the  last  act  as  they  were  in  the  first.  It 
would  be  entirely  unreasonable  to  hold  that  the  same  thing  was  not, 
intended  to  be  expressed  by  the  same  terms  as  was  at  first  designed, 
whenever  they  were  again  made  use  of  without  qualification,  and 
no  restraint  whatever  was  imposed  upon  their  signification  in  either 
of  these  instances.  In  the  title  to  the  act  of  1870,  and  in  that  of 
1871,  and  in  the  power  conferred  upon  the  board  of  apportionment, 
the  county  government  is  referred  to  as  the  same  identity,  the  same 
subject,  and  in  the  later  use  made  of  the  phrase,  it  must  necessa- 
rily have  included  all  that  it  did  in  the  title  of  the  act  of  1870  ;  that 
must  have  been  the  understanding  and  intention  of  the  legislature 
in  using  it.  It  would  be  plainly  absurd  to  attribute  any  different 
design  to  the  signification  of  the  words,  in  designating  the  powers 
of  the  board,  from  that  given  to  them  for  the  purpose  of  maintain- 
ing the  validity  of  the  first  act,  under  which  the  plaintiff's  salary 
was  increased,  and  as  no  reasonable  distinction  of  that  nature  can 
be  drawn,  then  it  follows  that  the  board  did  have  the  power  to 
reduce  the  plaintiff's  salary  as  it  was  exercised.  Its  proceedings 
are  not  objected  to,  but  simply  its  power  to  act  in  this  particular 
ease,  and  the  existence  of  the  powei  itself  seems  to  be  reasonably 
free  from  doubt.  The  plaintiff  was  an  officer  of  the  county  govern- 
ment, as  that  was  referred  to  in  the  act  of  1871,  and  the  board 
could,  for  that  reason,  lawfully  reduce  his  salary.  The  cases  of  Quin 
v.  Mayor  (44  How.,  266) ;  Landon  v.  Mayor  (49  id.,  218),  and 
Whitmore  v.  Mayor  (12  S.  C.  N.  Y.  [5  Hun],  195),  have  been  relied 
upon  as  authorities  requiring  a  different  construction  to  be  given  to 
the  term  county  government ;  and  if  they  do,  then  the  plaintiff's 
case  must  fail,  because  his  office  was  not  included  by  means  of  them 
in  the  act  of  1870.  But;  these  cases  do  not  appear  to  warrant  the 
position  they  were  cited  to  support.  In  the  first,  the  points  consid- 
ered were,  whether  Quin  who  was  a  justice  of  one  of  the  District 
Courts,  was  entitled  to  the  salary  of  $10,000  per  year,  because  it  was 
actually  paid  to  the  police  justices  when  the  act  was  passed  under 
which  he  claimed  it ;  and  if  he  was.  whether  the  failure  to  make  an 
appropriation  for  its  payment  was  a  defense  to  the  action.  That 
was  substantially  all  there  was  of  that  case,  which  included  no  fea- 
ture of  the  present  controversy.  The  same  observation  will  apply 
eqna)  force  to  the  case  of  Landon,  who  was  a  deputy  clerk  of 


494  GINNA  v.  SECOND  AVENUE  R  R  CO. 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

the  Court  of  Common  Pleas.  The  legislation  concerning  his  office 
did  not  show  it,  as  it  has  in  this  case,  to  be  properly  designated  as 
a  portion  of  the  county  government ;  while  the  case  of  Whitmore 
arose  under  and  depended  upon  the  construction  to  be  given  to  an 
entirely  different  provision  contained  in  an  act  passed  in  1873.  (Laws 
of  1873,  chap.  335,  §  97.)  Neither  of  these  cases  can  properly  be 
allowed  to  control  the  one  now  before  the  court,  for  the  statutory 
provisions  relating  to  it  have  been  enacted  in  different  terms,  and 
for  the  purpose  of  securing  different  results. 

The  action  of  the  board  of  apportionment  by  which  the  plaintiff's 
salary  was  reduced  should  be  sustained,  if  the  construction  given  to 
the  act  of  1870  is  the  proper  one,  holding  it  to  have  been  consti- 
tutionally increased ;  and  if  it  is  not,  then  no  reduction  was  required 
by  the  board  of  apportionment,  because  the  salary  was  never  prop- 
erly advanced.  There  is  no  equity  whatever  in  the  claim  made, 
and  the  law  should  not  be  strained  in  order  to  sustain  it.  The 
plaintiff  understood  the  amount  fixed  by  thfi  board  as  his  compen- 
sation, and  he  apparently  acquiesced  in  its  action,  by  continuing  to 
discharge  the  duties  of  his  office  afterwards  and  receiving  the  salary 
as  it  had  been  reduced.  The  judgment  should  be  reversed  and  a 
new  trial  ordered,  with  costs  to  abide  the  event. 

Judgment  affirmed,  with  costs. 


MAURICE  GINNA,  AS  ADMINISTBATOB,  ETC.,  OF. JOHN  GINNA, 
DECEASED,  RESPONDENT,  v.  THE  SECOND  AYENUE  RAIL- 
ROAD COMPANY,  APPELLANT. 

Negligence — riding  on  platform  of  street  ear — proximate  cause  of  death, 

Where  a  passenger  upon  a  street  car  in  the  city  of  New  York,  being  unable  to 
obtain  a  seat  in  the  interior  of  the  car,  remains  standing  upon  the  platform 
thereof,  he  is  not  guilty  of  such  contributory  negligence  as  prevents  him  from 
recovering  damages  for  injuries  sustained  by  him,  in  being  thrown  from  the  car 
in  consequence  of  the  negligence  of  the  driver  thereof. 

By  hia  fall  from  the  car  the  arm  of  the  deceased  was  broken  above  the  elbow, 
the  broken  fragments  of  the  bone  protruding  through  the  skin  and  resulting  in 


GINNA  v.  SECOND  AVENUE  R.  R.  CO.  495 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

the  development  of  a  poisonous  discharge,  which,  being  absorbed  by  the  blood, 
caused  his  death.  Held,  that  the  wrongful  act  of  the  defendant  in  occasioning 
the  wound  was  the  cause  of  his  death  within  the  meaning  of  the  statute,  and 
that  the  defendant  was  liable  for  the  damages  occasioned  thereby. 

APPEAL  from  a  judgment  in  favor  of  the  plaintiff,  entered  upon 
the  verdict  of  a  jury,  and  from  an  order  denying  a  motion  for  a 
new  trial  made  upon  the  minutes  of  the  justice  before  whom  the 
action  was  tried. 


Austen  G.  Fox  and  Waldo  Hatchings,  for  the  appellant.  The 
plaintiff's  intestate  was  guilty  of  negligence  that  contributed  to 
the  injury  he  received,  and  the  complaint  should  have  been  dis- 
missed. (Clarice  v.  The  Eighth  Ave.  R.  R.  Co.,  36  N.  Y.,  136 ; 
Rickey  v.  Boston  and  L.  JR.  R.  Co.,  14  Allen,  421.)  When  it 
appears  that  a  passenger  is  riding  upon  a  car  in  a  place  of  hazard 
and  danger,  his  negligence  is  prima  facie  proved,  and  the  onus  is 
upon  him  to  rebut  the  presumption.  (Clarke  v.  The  Eighth  Ave. 
R.  R.  Co.,  36  N.  Y.,  136.)  The  front  platform  of  a  horse  car  is  a 
place  of  hazard  and  danger.  (Solomon  v.  Cent.  Park,  etc.,  R. 
R.  Co.,  1  Swee.,  298.)  The  motion  to  dismiss  the  complaint  on 
the  ground  that  the  plaintiff  had  failed  to  prove  a  cause  of  action, 
and  the  motion  for  a  new  trial,  should  have  been  granted.  It 
was  not  enough  to  show  that  the  deceased  was  injured  by  the 
negligence  of  the  defendants  and  that  his  death  occurred  three 
weeks  thereafter,  especially  as  the  only  injury  he  sustained  was  a 
broken  arm,  but  it  was  necessary  to  show  that  the  injury  the 
deceased  received,  and  that  alone,  directly  caused  his  death.  It 
was  pyaemia  that  caused  the  death ;  and  the  neglect  in  not  caring 
properly  for  the  open  wound  and  the  foul  discharge  therefrom  that 
produced  the  pyaemia.  So  far  from  showing  that  the  defendant's 
negligence  was  the  sole  and  direct  cause  of  the  death  of  the  deceased, 
the  testimony  shows  that  the  jolt  of  the  car,  the  falling  off  the  edge 
of  the  platform  and  the  breaking  of  the  arm  was  each  one  of  a 
series  of  events  that  ended,  a  little  over  three  weeks  later,  in  the 
death  of  the  deceased ;  but  that  his  death  was  no  more  the  neces- 
sary, natural  or  even  probable  result  of  any  one  of  these  events 
than  it  was  of  his  starting  to  go  to  the  temperance  meeting,  on  his 
to  which  he  fell  off  the  platform  of  the  defendant's  car.  (Ryan 


496  GINNA  v.  SECOND  AVENUE  R.  R.  CO. 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1878. 

v.JH.  Y.  C.  R.  R.  Co.,  35  N.  Y.,  210;  Morrison  v.  Davis,  8 
Harris  [Penn.],  171.)  Death  is  not  a  necessary  or  usual  result  of 
A  broken  arm.  That  it  is  possible  cannot  be  denied,  but  common 
experience  teaches  us  that  it  is  very  (infrequent. 

0.  P.  BueU,  for  the  respondent.  Whether  the  injury  resulting 
in  John  Ginna's  death  was  caused  by  defendant's  negligence,  and 
whether  he  himself  was  chargeable  with  contributory  negligence, 
were  questions  properly  submitted  to  the  jury  and  their  decioion 
thereon  ought  not  to  be  disturbed.  (Bernhard  v.  Rens.  and  Sar. 
R.  R.  Co.,  1  Abb.  Ct.  of  App.  Dec.,  13 ;  Salter  v.  Utica,  etc.,  R. 
R.  Co.,  59  N.  Y.,  631 ;  Weber  v.  JT.  Y.  Cent.,  etc.,  R.  R.  Co.,  58  id., 
451 ;  Thurbtr  v.  Harlem,  etc.,  R.  R.  Co.,  60  id.,  326,  and  cases 
cited;  2  Redf.  on  Railways  [4th  ed.j,  231 ;  17  Wall.,  657.)  It  is 
not  negligence  per  se,  and  in  all  cases  and  under  all  circumstances, 
for  a  passenger  to  ride  standing  on  the  platform  of  a  car.  It  was 
not  negligence  in  this  case.  (Clarke  v.  Eighth  Ave.  R.  R..C<>., 
36  N.  Y.,  135 ;  Willis  v.  Long  Island  R.  R.  Co.,  34  id.,  670 ; 
Spooner  v.  Brooklyn  R.  R.  Co.,  54  id.,  230;  Hadencamp  v.  Second 
Ave.  R.  R.  Co.,  1  Swee.,  490 ;  Edgerton  v.  N.  Y.  and  Harlem 
R.  R.  Co.,  39  N.  Y.,  227;  Meeser  v.  Lynn  and  Boston  R.  R.  Co., 
8  Allen,  234;  Burns  v.  Belief ontaine  R.  R.  Co.,  50  Mo.,  139.) 

DANIELS,  J. : 

The  plaintiff  who,  upon  the  argument  of  these  appeals,  was 
admitted  to  have  been  properly  appointed  administrator,  prosecuted 
this  action  for  the  recovery  of  damages  arising  out  of  the  death  of 
his  minor  son,  which  was  alleged  to  have  been  caused  by  the  negli- 
gent act  of  the  defendant's  servants.  The  facts  appeared  by  evi- 
dence uncontradicted,  and  in  such  a  manner  as  to  leave  them  open 
to  but  very  little  if  any  controversy.  The  driver  of  the  car  testified 
that  the  deceased  "got  on  at  Thirty-third  street;  crowded  inside; 
the  boy  got  on,  and  in  the  first  place  he  looked  in  through  the 
door ;  there  was  a  lady  standing  up  against  the  door,  and  he  then 
turned  with  his  back  to  the  car ;  I  supposed  he  had  hold  on  the 
back  ;  whether  he  had  hold  of  the  railing,  I  could  not  say  ;  he 
stood  a  little  to  the  left  of  me  on  the  platform,  inside  of  the  step  ;" 
there  were  three  or  four  others  also  standing  upon  the  platform 


GINNA  v.  SECOND  AVENUE  R.  R.  CO.  497 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

The  car  proceeded  in  this  manner  until  it  reached  a  switch,  which 
was  not  known  to  the  driver,  between  First  and  Houston  streets  ; 
he  was  then  driving  at  the  rate  of  six  miles  an  hour,  or  at  a  slightly 
higher  rate  of  speed ;  the  switch  had  been  left  open,  so  that  the 
car,  instead  of  following  the  main  track,  would  run  upon  that ; 
and  when  it  was  reached,  the  horses  continued  on  the  line  of  the 
main  track,  and  the  car  took  the  switch ;  that  produced  a  violent 
jolt  or  shock,  which  threw  nearly  all  the  persons  riding  upon  the 
platform  off  into  the  street ;  by  the  fall  the  deceased  fractured  his 
arm,  which  was  followed  by  a  disease  resulting,  three  weeks  after 
wards,  in  his  death.  The  driver  had  been  employed  in  the  capacity 
in  which  he  acted,  from  November  until  March,  and  stated  that  it 
was  the  practice  to  walk  slow  where  there  was  a  switch,  and  that 
he  would  not  have  driven  so  fast  if  he  had  known  one  to  have  been 
at  that  point.  This  evidence  was  further  sustained  by  a  witness, 
who  also  rode  upon  the  platform.  He  testified  that  there  was 
room  for  him  to  stand  inside,  but  not  for  him  to  sit,  and  he 
described  the  accident  substantially  in  the  same  way  as  the  driver 
had  previously  done.  Under  these  circumstances,  it  was  quite  evi- 
dent that  it  was  the  result  of  carelessness  and  incompetency  on  the 
part  of  the  driver.  To  drive  along  a  public  avenue  at  the  rate  of 
speed  mentioned  by  the  driver,  at  a  point  where  a  switch  was 
maintained,  which  was  liable  to  be  opened  by  passing  cars  and 
other  vehicles,  upon  which,  when  opened,  the  car  would  inevitably 
be  propelled,  without  even  the  knowledge  on  his  part  of  its  exist- 
ence, presented  a  clear  case  of  negligence,  falling,  if  any  thing,  but 
little  below  positive  recklessness.  That  was  practically  conceded 
by  the  evidence  of  the  driver,  when  he  said  that  he  would  have 
gone  slow  if  he  knew  that  a  switch  existed  there.  The  judge,  how- 
ever, left  the  question  of  negligence  to  the  jury,  commenting,  at 
the  same  time,  upon  a  portion  of  it  in  such  terms  as  indicated  his 
opinion  to  be  the  same  as  that  which  has  just  been  expressed. 
And  to  that  intimation,  concerning  one  of  the  facts,  the  defendant's 
counsel  excepted.  But  the  exception  cannot  be  maintained,  for  the 
reason  that  what  was  said  in  this  respect  was  fully  justified  by  the 
evidence,  which  was  without  conflict  on  this  part  of  the  case.  All 
that  was  said  on  this  subject  which  the  counsel  considered  excep- 
tional, was  the  remark  that  the  driver  did  not  appear  to  be  an 
HUN— VOL.  VIII.  63 


498  GINNA  v.  SECOND  AVENUE  R.  R.  CO. 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

experienced  person  in  that  occupation.  The  learned  justice  said: 
"How  long  he  had  been  in  the  habit  of  driving  a  car,  or  if 
he  had  ever  been  in  the  habit  of  driving  one,  there  is  no 
evidence  before  you."  It  was  not  intended  by  this  to  be  denied 
that  he  had  driven  as  he  said  he  did,  from  November  to  March, 
but  simply  to  intimate  to  the  jury  that  he  was  not  a  practiced  or 
habitual  driver ;  and  that  had  been  substantially  stated  by  the  witness 
himself,  who  said  that  his  trade  was  that  of  a  baker,  and  he  had  never 
driven  a  car  before.  The  more  substantial  part  of  the  controversy 
related  to  the  position  and  conduct  of  the  deceased,  and  what  was 
said  in  that  connection  by  the  learned  justice  in  the  charge  given 
to  the  jury.  It  was  urged  in  the  defendant's  behalf  that  negligence 
appeared  on  the  part  of  the  deceased,  by  proof  of  the  fact  that  he 
rode  upon  the  platform  at  the  time  of  the  accident ;  but  the  court 
declined  to  adopt  that  view  and  submitted  the  question  to  the  jury, 
for  them  to  decide  it  under  the  circumstances  appearing  from  the 
evidence.  The  portion  of  the  charge  upon  this  subject  contained 
intimations,  which  indicated  the  existence  of  an  opinion  that  the 
deceased  could  not  be  charged  with  negligence  from  the  mere  fact 
of  riding  upon  the  platform  when  the  inside  of  the  car  was  full ; 
but  in  that  proposition  the  learned  justice  was  precisely  in  accord 
•with  the  established  authorities.  (  Ward  v.  Central  Park,  etc.,  R. 
R.  Co.,  42  How.,  289 ;  Clark  v.  Eighth  Ave.  R.  R.  Co.,  36  N.  Y., 
135 ;  Willis  v.  Long  Island  R.  R.  Co.,  34  id.,  670 ;  Spooner  v.  Brook- 
lyn R.  R.  Co.,  54  id.,  230.) 

In  the  outset  it  was  remarked,  by  way  of  admonition  to  the  jury, 
that  "  whatever  might  be  said  in  regard  to  any  of  the  facts  that  are 
in  dispute,  you  must  use  your  own  judgment,  and  not  mine,  as  what 
I  shall  say  is  merely  to  illustrate  points  of  law  that  are  in  the  case. 
leaving  to  you  the  decision  of  the  questions  of  fact."  And  that  was 
in  no  manner  afterward  retracted  or  withdrawn.  But  the  following 
observations,  which,  in  some  respects,  were  more  general  than  was 
required,  either  by  the  decisions  of  the  courts  or  the  evidence  in  the 
ctse,  were  made  in  the  course  of  the  charge :  "  It  is  said,  with  some 
truth,  by  members  of  the  bar,  that  the  Court  of  Appeals  have  gone 
a  great  way  in  excusing  railroad  corporations  for  accidents  that  have 
occurred,  but  until  the  Court  of  Appeals  shall  decide  to  what  extent 
cars  may  be  packed  without  allowing  men  to  stand  on  the  front  or 


GINNA  v.  SECOND  AVENUE  R.  R.  CO.  499 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

rear  platform,  whose  fare  they  have  taken,  I  am  not  prepared  in 
this  case  to  charge,  as  matter  of  law,  that  merely  standing  on  the 
front  or  rear  platform  on  the  part  of  the  deceased  was  negligence. 
I  am  disposed  to  submit  to  you  as  a  question  of  fact,  for  you  to  say 
whether,  under  the  circumstances,  that  was  a  negligence  on  his  part 
contributing  to  the  accident  by  which  he  sustained  this  injury.  How 
far  the  Court  of  Appeals  shall  finally  determine  that  a  car  may  be 
packed  without  allowing  men  to  stand  on  the  outside,  it  is  not  for 
me  to  say  at  the  present  time.  I  do  not  think  that  they  have  gone 
to  the  extent  of  saying  that  a  car  must  be  packed  so  full  that  mechan- 
ical pressure  would  be  required  to  get  any  more  in,  before  allowing 
men  to  stand  outside." 

To  this  statement  a  general  exception  was  taken  by  the  defendant's 
counsel.  The  proposition  advanced  was  sound,  for  it  left  the  jury 
to  determine  whether,  in  the  condition  in  which  the  car  was  when 
the  deceased  took  passage  upon  it,  he  was  negligent  in  remaining 
as  he  did  upon  the  platform.  If  he  could  not  conveniently  enter 
it,  he  certainly  was  not  negligent,  and  there  was  evidence  in  the 
case  tending  to  warrant  that  view.  The  Court  of  Appeals  has 
not  gone  so  far  as  to  hold  that  in  such  a  case  the  passenger  will 
ride  at  his  own  peril  by  standing  upon  the  platform.  But  it  has 
been  otherwise  held  that  upon  a  train  propelled  by  steam,  and 
ordinarily  traveling  at  a  much  higher  rate  of  speed  than  street  cars, 
negligence  will  not  be  attributable  to  the  passenger  injured,  from 
the  mere  fact  that  the  injury  occurred  while  he  was  riding  upon  the 
platform  when  a  seat  could  not  be  obtained  inside  the  car.  And 
there  was  no  apparent  reason  for  supposing  that  the  authority 
upholding  that  proposition  would  be  disregarded  or  overruled  by 
any  subsequent  decision  on  the  same  subject.  It  was,  on  the  con- 
trary, to  be  supposed  that  street  railway  companies  would  be  held 
liable  to  the  observance  of  the  same  rule ;  and  as  they  are  run  at 
less  hazard  and  risk,  in  the  way  of  accidents  to  passengers,  they  are 
certainly  entitled  to  no  more  favorable  consideration,  and  they  have 
received  no  more  in  the  administration  of  the  law  by  the  courts. 
If  further  instructions  were  deemed  necessary  by  way  of  explanation 
upon  this  subject  they  should  have  been,  but  were  not,  requested. 

The  defendant's  counsel,  in  like  manner,  excepted  to  the  state- 
ment made,  that  the  jury  had  a  right  to  infer  from  the  evidence  of 


500  GINNA  v.  SECOND  AVENUE  R.  R.  CO. 

FIRST  DEPARTMENT,  OCTOBER  TKRM,  1878. 

the  driver,  that  the  deceased  held  on  to  the  iron  rail  at  the  end  of  the 
car  to  keep  on  the  platform.  That  had  been  stated  by  the  driver 
without  objection  to  it,  as  an  inference  he  deduced  from  the  fact 
that  the  deceased,  after  looking  into  the  car,  turned  his  back  to* the 
end  of  it.  The  facts  themselves  did  appear  from  the  evidence  he 
gave.  The  deceased  stood  with  his  back  to  the  car,  which  \vaa  a 
position  warranting  the  supposition  that  he  would  take  hold  of 
the  railing  placed  there  to  steady  and  maintain  himself  in  his 
position,  as  people  usually  do  when  they  can,  who  are  riding  upon 
the  platform  of  a  street  car.  The  jury  could  justly  infer  from 
these  facts  that  such  was  the  position  in  which  the  deceased  had 
placed  himself,  and  that  was  all  that  was  really  held  by  the  court. 

It  was  further  added  upon  this  subject :  "  I  submit  to  you  the 
question  whether  the  position  of  the  deceased,  under  the  circum- 
stances, contributed  in  any  way  to  the  accident  by  which  this 
injury  was  sustained  ?  That  question  I  feel  disposed  to  leave  to 
you  as  a  question  of  fact,  not  being  prepared  at  the  present  time 
to  say  that  mechanical  pressure  is  needed  to  fill  a  car  before  a 
man  can  stand  on  the  platform."  That  was  excepted  to  by  the 
defendant's  counsel.  But  as  the  proposition  contained  in  the  state- 
ment was  as  favorable  to  the  defendant  as  it  had  any  right  to 
require,  the  exception  cannot  be  sustained.  It  was  probably 
intended  by  what  was  said  to  repeat  only  what  had  before  been 
stated,  which  was  that  the  plaintiff  could  not  recover  if  the 
deceased  was  unnecessarily  and  negligently  riding  on  the  platform 
of  the  car;  it  was  in  that  sense  that  it  must  have  been  understood 
by  the  jury,  for  if  they  had  followed  its  literal  effect  they  would 
necessarily  have  found  a  verdict  for  the  defendant,  inasmuch  as  it 
was  clear  that  the  position  of  the  deceased  did  contribute  to  the 
production  of  his  injury.  In  that  respect  the  case  was  too  strongly 
stated  in  the  defendant's  favor. 

The  court  also  stated  that  the  question  of  damages  was  entirely 
within  the  judgment  of  the  jury,  and  to  that  an  exception  was 
taken  by  the  defendant's  counsel.  The  statement  was  entirely 
accurate  and  no  explanation  was  required  to  be  added  to  it.  For 
both  reasons  the  exceptions  must  be  overruled, 

Under  the  evidence  which  was  given,  all  these  points  were  dis- 
posed of  properly  by  the  court.  If  more  was  said  than  wai 


GINNA  v.  SECOND  AVENUE  R.  R.  CO.  501 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

required  in  some  respects,  it  was  not  to  the  injury  of  the  defendant. 
The  case  was  a  proper  one  for  the  jury,  and  their  verdict  cannot 
be  set  aside  as  unwarranted.  The  evidence  showed  that  the 
deceased  sustained  his  injury  by  the  carelessness  of  the  defendant's 
servant.  He  was  required  to  stand  in  farther  from  the  edge  of 
the  platform  on  two  occasions  by  the  conductor,  but  he  was  then 
nearly  a  foot  from  the  steps,  and  it  does  not  appear  that  he  could 
conveniently  have  placed  himself  at  a  safe  position  while  the  other 
persons  besides  himself  were  also  riding  upon  the  platform.  These, 
however,  were  matters  appropriately  left  to  the  determination  of 
the  jury,  and  it  must  be  assumed  now  that  they  were  properly 
considered  and  decided  by  them. 

.  The  deceased  was  shown  to  have  been  a  remarkably  temperate, 
industrious,  healthy  and  intelligent,  young  man  of  the  age  of  eighteen 
years,  and  the  verdict,  which  was  for  the  sum  of  $3,000,  was  not 
under  those  circumstances  disproportioned  to  the  injury  caused  by 
his  death  to  his  next  of  kin. 

By  the  fall  his  arm  was  fractured  above  the  elbow,  the  broken 
fragments  of  the  bones  protruding  and  wounding  the  flesh  and  the 
skin.  That  resulted  in  the  development  of  a  poisonous  discharge 
which  remaining  in  the  wound  was  absorbed  by  the  blood  and 
in  three  weeks  afterwards  he  died  from  the  effects  of  the  poison. 
It  was  not  claimed  upon  the  trial  that  the  injury  had  been  improp- 
erly treated  or  that  death  was  not  the  result  of  it.  And  the 
position  could  not  have  been  reasonably  taken  in  view  of  the 
evidence  of  the  physician,  for  he  testified  that  the  bones  had  been 
put  in  their  proper  position,  and  that  the  physicians  of  the  hospital 
of  which  the  witness  was  one,  would  probably  have  treated  the 
injury  in  the  same  way  it  had  been  done  before  the  deceased 
went  there.  More  attentive  treatment  might  have  saved  the  life 
of  the  young  man,  but  its  necessity  was  not  apparently  suspected. 
He  was  subjected  to  that  which  was  followed  and  designed  to  be 
proper  by  the  wrongful  act  of  the  defendant.  That  was  the  cause 
which  placed  his  life  in  jeopardy,  because  it  produced  the  wound 
whose  poisonous  discharges  resulted  in  his  death.  No  other  wrong 
or  misconduct  than  that  of  the  defendant  was  shown  to  have  inter- 
vened ;  that  caused  his  death,  within  the  meaning  of  the  provisions 
of  the  statute  relating  to  this  class  of  cases,  by  producing  the  bodily 


502  ROEBLING  v.  DUNCAN. 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

condition  rendering  it  under  the  circumstances  inevitable.  It  waa 
the  operative  as  well  as  the  proximate  cause  of  death,  and  that  was 
sufficient  to  render  the  defendant  liable. 

The  judgment  and  the  order  should  be  affirmed. 

DAVIS,  P.  J.,  and  BRADY,  J.,  concurred 
Ordered  accordingly. 


WASHINGTON  A.  ROEBLING  AND  OTHERS,  RESPONDENTS,  v 
WILLIAM  BUTLER  DUNCAN  AND  OTHERS,  APPELLANTS. 

fraud  —  concealment  of  bankrupt  condition  —  Representation. 

Although  a  banker  or  trader  in  embarrassed  circumstances,  who  is  struggling  in 
good  faith  to  retrieve  his  fortunes,  is  not  compelled  to  disclose  the  fact  of  his 
embarrassment  to  persons  dealing  with  him ;  yet,  if  he  is  at  the  time  hopelessly 
insolvent,  he  is  guilty  of  a  fraud,  if,  by  virtue  of  his  supposed  solvency  and 
well  established  credit,  he  contracts  obligations  which  he  cannot  reasonably 
expect  to  pay. 

Persons  dealing  with  a  banker  in  good  faith,  and  in  reliance  upon  his  apparent 
solvency,  will  be  protected  against  the  consequences  of  the  concealment  by  the 
banker  of  kis  real  condition,  if  he  is  at  the  time  not  merely  insolvent  but  bank- 
rupt, and  where  such  concealment  involves  a  degree  of  bad  faith  from  which 
the  law  will  imply  fraud,  although  no  actual  representation  has  been  made. 

APPEAL  from  an  order  made  at  Special  Term,  denying  a  motion 
to  vacate  an  order  of  arrest. 

The  action  was  brought  by  the  plaintiff  against  the  defendants, 
copartners  carrying  on  a  business  as  bankers  in  the  city  of  New 
York,  under  the  firm  name  of  Duncan,  Sherman  &  Co.,  upon  a 
bill  of  exchange,  drawn  by  the  defendants,  July  21,  1875,  upon 
the  Union  Bank,  of  London,  for  £296  Ss.  %d.  sterling. 

An  order  of  arrest  was  obtained  therein  against  the  defendants. 
The  defendants,  in  the  affidavit  on  which  the  motion  to  vacate  the 
order  of  arrest  was  made,  among  other  things,  alleged  as  follows  : 

"  And  this  deponent  further  says,  that  the  said  firm  of  Duncan, 
Sherman  &  Co.,  composed  of  the  defendants  in  this  action,  did,  on 
the  27th  July,  1875,  stop  their  payments  and  execute  and  deliver  a 


ROEBLING  v.  DUNCAN.  503 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

general  assignment  of  all  their  estate  and  property  of  every 
description  to  William  D.  Shipman,  Esq.,  counselor  at  law,  upon 
trust  to  get  in  the  said  estate  and  convert  the  same  into  money, 
and  apply  the  proceeds  to  the  payment  of  all  the  debts  of  the  defend- 
ants according  to  law,  without  any  preference  whatever ;  that  the 
defendants  were  led  to  this  course  by  the  information  received 
on  the  morning  of  that  day  by  telegram  from  Europe,  that  negotia- 
tions there  pending  with  a  view  to  the  permanent  relief  of  the 
defendants,  and  to  prevent  the  necessity  of  any  interruption  what- 
ever in  their  business,  had  failed  of  success;  that  shortly  before 
the  sale  of  the  bill  of  exchange  in  the  complaint  mentioned, 
deponent  had  returned  from  Europe,  and  about  the  time  of  said 
sale  was  engaged  in  an  examination  into  the  financial  affairs  of  his 
firm.  He  had  discovered  that  they  were  in  an  embarrassed  condi- 
tion, but  was  at  the  same  time  actually  engaged  in  negotiations  for 
additional  means  which  would  justify  the  defendants  in  continuing 
their 'business,  a  course  which  would  be  for  the  best  interests  of  all 
concerned  in  their  estate,  and  that  deponent  had  strong  hopes  of 
accomplishing  that  result;  and  that  it  was  not  until  the  morning 
of  the  twenty-seventh  of  July,  that  from  the  advices  received  from 
Europe  he  became  satisfied  that  the  pending  negotiations  could  not 
be  carried  to  a  successful  conclusion ;  and  that  immediately  upon 
receiving  such  advices  he  took  the  course  which  seemed  to  him 
most  for  the  interest  of  all  his  creditors ;  that  pending  the  said 
negotiations,  and  while  the  prospect  seemed  in  favor  of  their  suc- 
cessful termination,  it  was  necessary  that  no  change  in  their  manner 
of  doing  business  should  be  made,  as  the  effect  of  such  change 
would  have  been  to  render  nugatory  the  efforts  on  foot  for  the 
permanent  relief  of  the  defendants. 

"  And  this  deponent  further  says,  that  it  is  not  true  that  on  the 
21st  July,  1875,  the  defendants,  or  either  of  them,  knew  or  believed 
that  they  were  hopelessly  insolvent,  or  had  exhausted  every  avenue 
of  relief,  or  possessed  no  financial  resources  whatever. 

"  And  that  it  is  not  true  that  when  the  bill  of  exchange  in  the 
complaint  mentioned  was  sold,  the  defendants,  or  either  of  them, 
knew  that  the  same  would  not  be  paid  or  honored,  or  that  they  did 
not  or  would  not  have  sufficient  funds  at  the  Union  Bank  to  meet 
and  pay  the  same.  *  *  * 


504  ROEBLINTG  v.  DUNCAN. 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

"  And  this  deponent  denies  that  he  or  his  co-defendants,  or  either 
of  them,  ever  made  any  pretense  on  the  subject  of  their  solvency, 
or  perpetrated  any  cheat  or  fraud  upon  the  plaintiffs,  or  upon  any 
other  person,  or  by  any  trick  or  device  whatever  obtained  moneys 
of  the  plaintiffs." 

The  court,  from  the  papers  used  on  the  motion,  found  that  when 
they  sold  the  bill  in  question  the  defendants'  liabilities  amounted 
to  about  $5,000,000,  and  their  assets  to  about  $2,000,000. 

Joseph  Larocque,  for  the  appellant. 
Henry  H.  Morange,  for  the  respondent. 

DAVIS,  P.  J. : 

The  court  at  Special  Term,  in  deciding  the  motion,  pronounced 
the  following  opinion : 

"  BARRETT,  J.  The  rule  of  law  which  governs  in  cases  of  this 
kind  is  well  settled.  The  question  is  one  of  intent,  to  be  ascertained 
by  an  inquiry  as  to  whether  the  debtor  had  any  reasonable  expecta- 
tion of  meeting  his  obligations  at  maturity.  If  he  had  such  reason- 
able expectation,  then  it  is  the  case  of  a  legitimate  effort  by  an 
embarrassed  person,  be  he  trader  or  banker,  to  retrieve  his  fortunes ; 
and  there  the  law  is  not  so  strict  as  to  require  a  disclosure  which 
would  probably  defeat  the  effort.  Otherwise  it  falls  within  that 
other  class  of  cases  where  the  merchant  or  trader,  finding  himself 
hopelessly  insolvent  and  with  stoppage  imminent,  without  disclos- 
ing his  situation,  and  in  virtue  of  his  supposed  solvency  and  well 
established  credit,  contracts  fresh  obligations  which  he  cannot  rea- 
sonably hope  to  meet;  and  this  the  law  condemns  as  fraudulent. 
Now,  in  the  case  at  bar,  the  defendants  were  hopelessly  insolvent 
when  they  sold  the  bill  in  question:  that  is,  their  liabilities 
amounted  to  about  $5,000,000,  their  assets  to  less  than  $2,000,000. 
They  deny  knowledge  of  insolvency,  but  admit  knowledge  of 
embarrassment. 

Six  days  later  they  stopped  payment,  aud  made  a  general  assign- 
ment. Under  these  circumstances,  it  became  very  clearly  the  duty 
of  the  defendants,  especially  after  the  admonition  of  Mr.  Justice 
LAWRENCE,  to  lay  before  the  court  all  the  facts  upon  which  they 


ROEBLING  v.  DUNCAN.  505 

FIKST  DEPARTMENT,  OCTOBER  TERM,  1876. 

based  their  sanguine  expectations.  This  they  have  failed  to  do. 
They  say  that  they  were  negotiating  for  additional  means  which 
would  have  insured  their  ability  to  continue,  and  that  they  had 
strong  hope  of  accomplishing  that  result.  But  they  furnish  no 
facts  upon  this  head.  They  do  not  say  with  whom  they  were  nego- 
tiating, nor  for  what  sums,  nor  do  they  give  letters,  telegrams,  or 
other  particulars.  It  was  for  the  court  to  say,  when  the  facts  were 
presented,  whether  the  hopes  and  expectations  of  which  the  defend- 
ants speak  were  reasonable  and  real.  It  certainly  will  not  do  for  a 
firm  which  owes  $5,000,000,  and  has  less  than  $2,000,000  of  assets," 
when  taxed  with  continuing  after  knowledge  of  that  state  of  things, 
to  rely  upon  generalities.  Again,  on  the  question  of  knowledge, 
there  is  unfortunately  the  same  reticence.  The  defendants  admit 
that  about  the  time  of  the  sale  of  the  bill  they  were  engaged  in  an 
examination  of  their  financial  affairs,  and  had  discovered  that  they 
were  embarrassed,  though  not  hopelessly  insolvent.  The  court 
could  better  have  sustained  that  view  of  the  case,  if  the  defendants 
had  given  the  facts  as  to  such  examination  and  discoveries.  Pre- 
sumptively such  examination  disclosed  the  truth,  viz.,  that  the 
defendants  could  not  pay  forty  cents  on  the  dollar.  If  it  did 
not,  if  there  was  any  mystery  about  their  affairs  which  could 
not  be  immediately  unraveled  by  an  examination  of  their  books,  or 
any  peculiarity  about  their  assets  which  rendered  at  least  an 
approximately  accurate  valuation  impossible,  the  defendants  should 
have  shown  what  the  difficulty  was.  No  light  is  thrown  upon 
the  subject  by  simply  declaring  that  they  found  themselves 
embarrassed.  That,  again,  was  a  matter  for  the  court.  What  the 
defendants  in  fact  found  was,  that  they  owed  so  much,  and  that 
they  had  such  and  such  assets  with  which  to  pay.  It  was  their 
duty  to  give  the  court,  as  nearly  as  might  be,  a  photographic  view 
of  this  examination,  and  of  all  the  facts  tending  to  justify  the 
assumption  of  mere  embarrassment,  which  might  be  relieved  by 
the  acquisition  of  additional  means.  It  is  true  that  there  is  an 
averment  in  the  defendants'  affidavits  that  the  realizable  value  of 
assets  did  not  "necessarily"  appear  upon  the  face  of  their  books, 
and  that  without  a  close  examination  of  the  several  accounts  the 
value  of  assets  or  amount  of  losses  would  not  "necessarily"  appear. 
This  is  a  general  statement  which  is  true  of  almost  every  firm,  but 
HUN— VOL.  VIII  64 


506  ROEBLING  v.  DUNCAN 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

whether,  or  to  what  extent,  the  defendants  here,  in  continuing  after 
such  examination,  were  misled  by  any  such  state  of  things  is  not 
detailed.  It  thus  appears  that  when  the  defendants  sold  the  bill, 
their  liabilities  exceeded  their  assets  by  upwards  of  $3,000,000,  and 
that  they  had  made  an  examination  of  their  condition  which  ought 
to  have  disclosed  that  fact,  and  the  consequent  futility  of  negotiat- 
ing for  the  enormous  sum,  which  would  have  been  necessary  to 
have  placed  them  upon  a  reasonably  sound  basis.  Under  such 
circumstances,  therefore,  it  was  their  duty  to  have  stopped  at  once ; 
and  now,  when  they  seek  to  justify  their  continuance  until  the 
failure  of  the  negotiations  for  additional  means,  they  should  have 
spread  before  the  court,  fully  and  explicitly,  the  particulars  of  the 
examination  which  they  had  made,  the  assets  which  it  showed,  the 
value  which  they  placed  thereon,  the  facts  upon  which  they  grounded 
such  valuation,  and,  as  a  sequitur^  what  deficiency  there  then 
appeared  to  be  between  the  liability  of  the  defendants  and  mean^  of 
payment.  If,  upon  such  facts  having  been  presented,  the  court  had 
been  of  opinion  that  as  the  defendants  were  then  situated  (that  is, 
treating  them  as  honest  men  of  fair  judgment,  looking  at  their  affairs 
according  to  the  best  lights  then  afforded  to  them),  they  were  justi- 
fied in  believing  that  theirs  was  a  case  of  mere  embarrassment,  and 
not  of  complete  insolvency,  it  would  have  justified  them  in  continu- 
ing their  business  without  disclosing  their  condition.  But  even  then , 
if  the  embarrassment  appeared  to  be  of  so  grave  a  character  that 
without  additional  means  there  was  no  prospect  of  retrieving 
themselves,  the  court,  before  finally  justifying  the  incurring  of 
fresh  obligations  (even  pending  the  negotiations),  would  have  been 
compelled  to  ask  for  full  and  precise  information  as  to  the  amount 
necessary  to  be  had,  and  the  grounds  upon  which  the  defendants 
based  their  hope  of  obtaining  it ;  in  fact,  for  the  details  of  such 
negotiations.  The  explanations  made  by  the  defendants,  with 
respect  to  the  state  of  the  account  with  the  Union  Bank  of  London, 
are  sufficiently  full.  They  do  not,  however,  alter  the  effect  of  the 
failure  to  furnish  the  facts  which  have  been  discussed.  Of  course, 
the  payment  of  the  bill  did  not  altogether  depend  upon  the  fact, 
that  the  defendant  had  money  or  credit  with  the  drawee.  It 
depended  rather  upon  their  continuance.  In  other  words,  they 
were  not  justified  in  the  expectation  that  the  bill  would  be  honored 


ROEBLING  t>.  DUNCAN.  507 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

merely  because  the  drawees  had  funds  in  their  hands,  unless  they 
were  also  justified  in  the  expectation  of  success  in  the  negotiation 
for  additional  means,  and  in  the  belief  that  such  additional  means 
would  enable  them  to  continue  their  business  without  interruption. 
Indeed,  as  they  themselves  say,  the  cause  of  the  failure  of  the 
Union  Bank  of  London  to  honor  their  bills,  including  that  now  in 
question,  was  the  telegraphic  report  in  London  of  their  stoppage 
and  of  the  execution  of  their  assignment.  The  court  is,  therefore, 
constrained  to  hold,  as  the  necessary  result  of  the  conceded  facts, 
calling  as  they  do  for  clear  and  preci&e  evidence  (which  has  not 
been  furnished)  of  other  facts  sufficient  to  justify  the  alleged 
expectation  of  continuance,  that  the  defendants  must  have  known, 
when  they  sold  the  bill,  that  before  it  reached  London  they  would 
be  compelled  to  close  their  doors,  and  that  a  refusal  to  accept  would 
be  the  result.  It  follows,  therefore,  without  the  necessity  of  con- 
sidering the  other  branch  of  the  case,  that  the  motion  to  vacate 
the  order  of  arrest  must  be  denied." 

A  careful  examination  of  the  case  has  led  us  to  substantially  the 
same  conclusion  expressed  in  this  opinion.  It  seems  unnecessary, 
therefore,  that  we  should  do  more  than  simply  express  our  concur- 
rence in  the  views  and  conclusions  of  the  opinion  of  the  Special 
Term.  The  case  stands  upon  a  few  bold  and  striking  proposi- 
tions :  First.  That  at  the  time  of  sale  to  plaintiff  of  the  bill  of 
exchange,  the  defendants  were,  in  fact,  utterly  and  hopelessly 
insolvent.  Their  indebtedness  was  about  $5,000,000.  Their  nom- 
inal assets  did  not  exceed  $2,000,000,  and  were  in  fact  of  much  less 
value.  They  probably  did  not  know  the  extremities  of  their  con- 
dition, but  enough  is  shown  to  establish  that  they  did  know  that 
their  condition  was  one  of  utter  insolvency,  unless  they  could  real- 
ize relief  to  a  very  large  amount  from  sources  which  they  say  were 
in  contemplation.  That  relief  was  contingent.  It  wholly  failed, 
and  it  seems  to  us  that  it  must  have  been  at  all  times  so  doubtful 
in  character  that  the  defendants  had  no  right,  with  what  knowledge 
they  must  have  possessed  of  the  hopeless  condition  of  their  own 
affairs,  to  force  upon  persons  who  dealt  with  them  in  good  faith, 
with  full  confidence  in  their  entire  solvency,  the  chances  of  loss 
upon  the  failure  of  their  alleged  expectations.  Certainly  they 
were  bound  to  show  to  the  court,  in  the  most  clear  and  convincing 


508  MATTER  OF  WOVEN  TAPE  SKIRT  CO. 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

manner,  the  basis  of  their  expectations,  and  that  they  had  just  rea 
BODS  for  relying  upon  them.  The  opportunity  was  twice  afforded 
them  to  do  this  on  the  two  motions  in  this  case.  We  agree  with 
the  court  below,  that  the  general  statements  were  not  sufficient 
under  the  circumstances.  Dealers  with  bankers,  while  acting  in 
good  faith  in  reliance  on  their  apparent  solvency,  must  be  protected 
against  the  consequences  of  the  concealment  of  their  real  condition 
when  such  condition  is  not  merely  insolvency,  but  utter  bank 
ruptcy,  and  where  such  concealment  involves  a  degree  of  bad  faith 
from  which  the  law  will  imply  fraud,  although  no  actual  representa- 
tion be  made. 

We  think  the  order  should  be  affirmed. 

DANIELS,  J.,  concurred  ;  BRADY,  J.,  concurred  in  the  result. 
Order  affirmed. 


IN  THE  MATTER  OF  THE  WOVEN  TAPE  SKIRT  COMPANY. 

Dissolution  of  corporations  —  Disagreement  of  trustees  —  Sale  of  assets  —  chapter  442 

of  1876. 

tinder  the  provisions  of  chapter  442  of  1876,  authorizing  the  dissolution  of  a 
corporation  in  case  the  trustees  are  unable  to  agree  as  to  the  management 
thereof,  the  court  may,  in  proper  cases,  direct  the  assets  remaining  after  the 
payment  of  the  expenses  of  the  receivership  and  of  the  debts  and  liabilities  of 
the  corporation,  to  be  sold  and  the  proceeds  divided  among  the  stockholders. 

APPEAL  by  Joseph  I.  West  from  an  order  directing  the  receiver 
of  the  property  of  the  Woven  Tape  Skirt  Company  to  sell  at  pub- 
lic auction,  after  due  notice,  as  required  by  law,  the  interest  of  the 
corporation  in  letters  patent,  and  an  agreement  concerning  the  use 
of  the  invention  made  with  the  assignors  of  such  interest. 

Daniel  T.  Walden,  for  the  appellant. 
Albert  Cardoso,  for  the  respondent. 

DANIELS,  J.: 

The  corporation  was  formed  for  the  purpose  of  manufacturing 
and  selling  woven  tape  skirts,  under  the  right  to  do  so  secured  by 


MATTER  OF  WOVEN  TAPE  SKIRT  CO.  509 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

virtue  of  the  patent  and  agreement.  It  consisted  of  but  four  asso- 
ciates, who  disagreed  in  its  conduct  and  management.  For  that 
reason  alone  it  was  dissolved,  as  it  has  been  provided  that  such 
corporations  may  be,  pursuant  to  the  authority  for  that  purpose 
created  by  chapter  442  of  the  Laws  of  1876. 

When  the  corporation  was  formed,  the  appellant  and  Moritz  Cohn 
each  owned  one-sixth  of  the  patent,  and  had  an  agreement  with 
the  owners  of  the  other  four-sixths  concerning  its  use.  These  two 
persons  assigned  the  agreement  and  their  respective  one-sixths  in 
the  patent  to  the  corporation,  and  received  an  equivalent  for  the 
same  in  an  obligation  that  there  should  be  issued  to  each  of  them 
300  shares  of  its  paid  up  stock.  They  also  contributed  for  work- 
ing capital  the  sum  of  $20,000  each.  After  the  formation  of  the 
corporation,  Cohn  transferred  one-third  of  his  interest  in  it  to 
Samuel  Galland,  who  continues  to  be  the  owner  of  that  interest. 
Both  himself,  and  Cohn,  who  is  the  owner  of  two-thirds  of  one-half 
the  stock  of  the  corporation,  desire  a  sale  of  the  interest  assigned  to 
it  in  the  patent  and  agreement ;  and,  in  support  of  their  supposed 
right  to  have  such  sale  made,  swear  that,  in  their  judgment,  a 
larger  price  can  be  obtained  for  the  entire  .interest  together  than 
for  the  two  undivided  halves  sold  separately.  The  appellant  is 
willing  to  receive  back  his  interest  as  he  assigned  it  in  full,  for  so 
much  of  his  right  to  participate  in  the  assets  of  the  corporation, 
and  protests  against  any  sale  of  it  whatever. 

The  statute  provides  that,  after  paying  the  expenses  of  the 
receivership  arid  the  debts  and  liabilities  of  the  corporation,  the 
residue  of  its  assets  shall  be  distributed  among  the  stockholders  in 
proportion  to  their  several  interests  therein.  (Laws  of  1876,  chap. 
442.)  But  it  could  not  have  been  intended  by  this  provision  that  it 
should  be  understood  as  prohibiting  a  sale  for  the  purpose  of  mak- 
ing that  distribution.  Cases  may  arise  where  a  distribution  of  the 
property  itself  can  be  equitably  made  by  a  decision,  and  where  that 
mode  of  proceeding  would  secure  to  each  one  of  the  stockholders  all 
that  he  could  be  entitled  to  receive.  There  a  sale  would  be  evidently 
needless  and  improper.  In  other  cases,  nothing  less  than  a  sale  of 
the  assets  would,  under  a  proper  distribution  of  the  assets,  be 
practicable.  In  them  the  sale  would  become  a  plain  necessity, 
and  the  only  proper  course  for  making  the  distribution  provided 


510  TODD  v.   SHELBOURNE. 

FIKBT  DEPARTMENT,  OCTOBER  TERM,  1876. 

for  by  the  statute.  The  legislature  has  not  in  terms  prescribed 
the  manner  in  which  the  assets  shall  be  distributed.  It  has  simply 
provided  generally  for  a  distribution ;  and,  consequently,  whatever 
may  become  necessary  for  the  purpose  of  effectually  and  prop- 
erly making  it,  must,  according  to  well  settled  principles  of  con- 
struction, be  included  within  the  authority  created  by  the  statute. 
(Green  v.  The  Mayor,  2  Hilton,  203,  209 ;  People  v.  White,  59 
Barb.,  666.)  If  the  distribution  can  be  properly  made  without  a 
sale,  then  it  should  not  be  made.  But  when  a  sale  may  become 
necessary  to  give  each  one  of  the  stockholders  his  full  interest  in, 
the  assets,  then,  clearly,  it  should  be  ordered  by  the  court.  An 
exigency  of  this  description  has  been  shown  by  the  affidavits  to 
exist  in  this  case.  For  it  has  been  made  to  appear  that  a  sale  of  the 
two-sixths  of  the  patent,  together  with  the  agreement  made  for  its 
use  will,  very  probably,  bring  a  larger  proportionate  price  than  a 
sale  of  one-sixth  with  an  undivided  one-half  of  the  agreement. 
And  both  Cohn  and  Galland  are  entitled  to  all  the  advantage  that 
can  be  so  secured  in  the  distribution  of  the  assets  of  the  corpora- 
tion. In  that  way  alone  will  they  receive  the  full  measure  of 
their  interests. 

For  these  reasons  the  order  made  was  a  proper  one,  and  it  should 
be  affirmed  with  ten  dollars  costs,  besides  disbursements. 

DAVIS,  P.  J.,  and  BRADY,  J.,  concurred.  , 

Order  affirmed,  with  ten  dollars  costs  and  disbursements. 


HENRY  B.  TODD,  RESPONDENT,  v.  SIDNEY   F.  SHEL- 
BOURNE, APPELLANT. 

Negotiable  paper  —  invalid  in  hands  of  payee  —  bona  fide  purchaser  of—  recovery  by, 
restricted  to  amount  paid. 

An  indorsee  of  commercial  paper,  not  valid  as  a  legal  obligation  in  the  hands  of 
the  payee  by  whom  it  was  negotiated,  is  restricted  in  his  recovery  in  an  action 
against  the  maker,  to  the  amount  advanced  by  him  upon  the  faith  of  the  paper, 
together  with  interest  thereon. 


TODD  v.  SHELBOURNE.  51] 

FIBST  DEPARTMENT,  OCTOBER  TERM,  1876. 

APPEAL  from  a  judgment  in  favor  of  the  plaintiff,  entered  upon 
the  report  of  a  referee. 

F.  O.  Salmon,  for  the  appellant. 
James  J.  Thompson,  for  the  respondent. 

DANIELS,  J. : 

This  action  was  brought  to  recover  the  amount  of  a  promissory 
note,  subscribed  by  the  defendant  as  maker.  The  note  was  dated 
611  the  26th  day  of  October,  1869,  and  by  its  terms  the  defendant 
promised  to  pay  James  C.  Mumys,  or  order,  the  sum  of  $10,000, 
in  three  years,  for  value  received.  It  was  not  delivered  to  the 
payee,  or  to  any  person  for  his  use,  but  it  was  left  at  his  place  of 
business,  and,  as  the  referee  has  found,  in  his  possession,  in  con- 
templation of  a  settlement  of  their  business  affairs,  to  be  after- 
wards had  between  them.  No  settlement  was  effected  between 
them  and  no  final  agreement  made  as  to  the  disposition  to  be  made 
of  the  note.  It  follows,  from  these  facts,  that  the  note  never 
became  binding  upon  the  defendant  as  a  contract  in  favor  of  the 
payee.  (Hall  v.  Wilson,  16  Barb.,  548,  549,  and  cases  cited.)  To 
give  that  character  to  it  there  should  have  been  a  delivery  of  it  to 
him  or  to  some  other  person  for  his  benefit ;  and  that  was  shown 
never  to  have  taken  place.  The  consequence  resulting  from  the 
absence  of  that  fact  was  that  the  payee  was  not  in  a  condition  to 
enforce  the  note  as  a  legal  obligation,  or  to  maintain  any  action 
upon  it  against  the  defendant. 

Before  the  expiration  of  the  three  years  he  sold,  and  by  his 
indorsement  upon  it  transferred  the  note  to  the  plaintiff  for  the 
sum  of  $1,500.  No  more  than  that  sum  was  ever  advanced  upon 
the  faith  of  it  by  the  plaintiff,  and  the  point  presented  for  the 
decision  of  this  court  by  the  present  appeal  is,  whether  he 
must  not  be  restricted  in  his  recovery  to  that  amount  and  interest 
upon  it.  If  the  note  had  been  delivered  to  the  payee  for  a  good 
consideration,  and  in  that  way  had  become  a  legal  obligation  in  his 
favor  against  the  defendant,  then  he  could  have  sold  it  for  any 
price  that  would  have  been  satisfactory  to  himself,  and  the  pur- 
chaser would  have  been  entitled  to  recover  the  full  amount  of  it 
from  the  defendant ;  but  from  the  facts  appearing  it  this  caee  it  i* 


512  TODD  v.  SHELBOURNE. 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

entirely  evident  that  the  defendant  never  incurred  any  obligation 
to  the  payee  by  means  of  the  note.  It  was  not  the  evidence  of  a 
legal  demand  in  his  favor;  and  it  could  only  become  a  lawful  con- 
tract in  favor  of  the  plaintiff  or  any  other  person  receiving  it  from 
the  payee  before  it  was  due,  by  the  advancement  or  parting  with 
value  upon  the  faith  of  it.  In  favor  of  such  a  person  the  law  will 
give  the  instrument  vitality  for  the  purpose  of  protecting  him 
against  loss.  That  results  from  the  well  established  rule  that 
where  one  of  two  innocent  persons  must  sustain  a  loss  through  the 
unauthorized  act  or  misconduct  of  another,  it  shall  be  borne  by  the 
person  who  invested  him  with  the  apparent  authority  to  perform 
the  act.  The  object  of  the  law  is  to  protect  the  dealer  innocently 
and  properly  parting  with  his  money  or  property  on  the  faith  of 
appearances,  justifying  the  conclusion  that  the  person  receiving  it 
is  authorized  to  perform  the  act  for  which  it  may  be  obtained  ;  and 
the  reason  upon  which  the  principle  has  been  maintained  requires 
nothing  more  than  a  complete  indemnity  to  him  against  all  proba- 
ble loss.  This  has  long  been  the  extent  of  protection  accorded  to 
the  purchasers  of  property  in  good  faith  against  the  equitable 
rights  of  others.  And  no  good  reason  appears  for  making  any  dis- 
crimination in  its  application  on  account  of  the  nature  of  the  prop- 
erty which  may  have  been  the  subject  of  the  sale.  The  necessities 
of  the  case  and  the  equities  involved  are  the  same  in  all  cases,  and 
the  rule  should  be  uniformly  applied  to  their  adjustment. 

Accordingly,  it  has  been  held  that  the  indorsee  of  commercial 
paper  not  valid  as  a  legal  obligation  in  the  hands  of  the  payee 
negotiating  it,  must  be  restricted  in  his  recovery  to  the  value  with 
interest  advanced  by  him  to  the  payee  upon  the  faith  of  it.  (Ste- 
vens v.  Corn  Exchange  Bank,  10  S.  C.  N.  Y.  [3  Hun],  147,  and  cases 
referred  to  in  the  opinion;  Platt  v.  Beebe,  57  N.  Y.,  339;  Wiffen 
v.  Roberts,  \  Esp.,  261 ;  Jones  v.  Hibbert,  2  Starkie,  304 ;  Nash  v. 
Brown,  6  Mann.,  G.  &  S.,  584  ;  Chitty  on  Bills,  89  [12th  Am.  ed.], 
note  x  /  Allaire  v.  Hartshouse,  1  Zab.,  665,  673 ;  Parish  v.  Stone, 
14  Pick.,  198,  209 ;  Stoddard  v.  Kimball,  6  Gush.,  469 ;  ffublard 
v.  Chapin,  2  Allen,  328  ;  Petty  v.  Harnum,  2  Humph.,  102  ;  Hoi- 
man  v.  Hobson,  8  id.,  127  ;  Simpson  v.  Clarke,  2  Crompton,  M.  & 
R.,  342;  Youngs  v.  Lee,  18  Barb.,  192,  193;  affirmed,  2  Kernan, 
551 ;  Card-well  v.  Hicks,  37  Barb.,  458  ;  Harger  v.  Wilson,  63  id., 


MATTER  OF  MOORE.  513 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

237.)  These  authorities  fully  sustain  that  proposition,  and  they  are 
in  no  sense  in  conflict  with  the  rule  which  allows  a  recovery  for  the 
full  amount  of  paper  improperly  negotiated  when  an  adequate  con- 
sideration has  been  advanced  before  its  maturity  in  good  faith  upon 
it.  The  paper  derives  its  vitality  wholly  from  the  circumstance  that 
it  has  been  obtained  for  value  without  notice  by  an  innocent  pur- 
chaser. For  his  protection  it  is  maintained  in  his  hands  as  a  legal 
obligation.  The  object  of  the  law  is  to  save  him  from  loss ;  and 
to  do  that,  a  recovery  of  the  amount  he  may  have  advanced  is  all 
that  can  be  required.  To  go  beyond  it  would  be  inequitable  and 
unjust  to  the  party,  after  that,  equally  entitled  to  be  protected 
from  unnecessary  loss. 

The  judgment  should  be  reversed  and  a  new  trial  ordered,  with 
costs  to  appellant  to  abide  the  event,  unless,  within  twenty  days 
after  notice  of  the  decision,  the  plaintiff  stipulates  to  reduce  the 
recovery  to  $1,500  and  interest  upon  it  from  the  2d  day  of  October, 
1872  ;  in  that  event  the  judgment  as  so  reduced  will  be  affirmed, 
without  costs  of  the  appeal  to  either  party. 

DAVIS,  P.  J.,  and  BRADY,  J.,  concurred. 

Judgment  reversed,  new  trial  ordered,  costs  to  appellant  to 
abide  event,  unless,  within  twenty  days  after  notice  of  decision, 
plaintiff  stipulates  to  reduce  the  recovery  to  $1,500  and  interest 
from  October  2d,  1872;  in  that  event,  judgment  as  so  reduced, 
affirmed,  without  costs  of  the  appeal  to  either  party. 


IK  THE  MATTER  OF  THE  PETITION  OF  JEREMIAH   H.  MOORK 
TO  VACATE  AN  ASSESSMENT  FOE  SECOND  AVENUE. 

Assessments — purchase  of  property  subsequent  to  confirmation — presumed  to  TUVM 
been  made  subject  to — Party  aggrieved — who  is  under  chap.  388  of  1858. 

Where  a  person  moves,  under  chapter  338  of  1858,  to  vacate  an  assessment  upon 
property  purchased  by  him  subsequent  to  the  confirmation  of  the  assessment, 
'.t  rests  upon  him  to  show  that  he  is  aggrieved  thereby.  In  the  absence  of  any 
evidence  on  this  point,  it  will  be  presumed  that  he  purchased  subject  to  the 
assessment,  and  that  the  same  formed  part  of  the  consideration  given  by  him 
for  the  property. 

APPEAL  from  an  order  setting  aside  an  order  vacating  an  assessment, 
Huw— VOL.  VIII.        65 


514  MATTER  OF  MOORE. 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 
Irving  Ward,  for  the  appellant. 
Wm.  C.  Whitney  and  Hugh  Z.  Cole,  for  the  city. 

BRADY,  J. : 

The  order  granted  in  this  matter,  vacating  the  assessment,  was 
based  upon  the  allegation,  not  then  disputed,  that  the  petitioner 
was  the  owner  of  the  lots  designated.  It  was  subsequently  dis- 
covered, and  admitted  by  him,  that  he  was  not  the  owner  at  the 
time  the  assessment  was  confirmed,  but  became  so  subsequently, 
namely,  on  the  14th  April,  1870,  the  assessment  having  been  con- 
firmed on  the  7th  March,  1870. 

The  order  was  therefore,  on  application,  duly  vacated,  and  from 
that  result  the  petitioner  appeals.  The  question  still  presents  itself, 
is  he  aggrieved  ?  The  presumption  is,  that  he  took  the  lots  sub- 
ject to  the  assessment  which  formed  a  part  of  the  consideration- 
which  he  gave  for  them.  If  it  were  otherwise,  it  was  incumbent 
upon  him  to  show  it.  The  rule  is  settled,  that  the  applicant  in 
cases  like  this  has  the  onus  of  bringing  himself  within  the  pro- 
visions of  the  statutes  authorizing  the  relief  sought  by  competent 
proof  on  all  contested  questions.  (In  re  Basford,  50  N.  Y.,  509 ; 
In  re  Bu~ke,  62  id.,  224.) 

It  does  not  follow  from  the  mere  fact  of  ownership  acquired 
subsequent  to  the  confirmation  of  an  assessment  that  the  owner 
is  aggrieved.  The  presumption  is  that  he  was  indemnified,  and  it 
will  control  until  there  is  evidence  to  the  contrary.  If  it  formed 
part  of  the  consideration,  then  the  presumption  is  that  the  prior 
owner  is  the  one  aggrieved,  because  he  has  made  an  allowance  tc 
cover  it  in  the  transfer  of  the  property,  or  is  bound  to  do  so.  (In 
the  Matter  of  Phillips,  60  N.  Y.,  16.)  There  being  in  this  mat- 
ter no  proof  that  the  petitioner  was  bound  to  pay  the  assessment 
as  an  original  liability,  or  as  one  assumed  without  indemnity,  the 
order  made  should  be  affirmed.  He  who  is  merely  discharging  the 
debt  of  another  with  property  or  funds  furnished  him,  cannot  com- 
plain as  an  aggrieved  person. 

The  order  shoul  i  be  affirmed,  with  ten  dollars  costs  and  dis- 
bursements. 

DAVIS,  P.  J.,  and  DANIELS,  J.,  concurred. 

Order  affirmed,  with  ten  dollars  costs  and  disbursements. 


EMPIRE  B.  &  M.  L.  ASSO.  v.  STEVENS.  515 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 


THE  EMPIRE  BUILDING  AND  MUTUAL  LOAN  ASSO- 
CIATION AND  GEORGE  H.  POOL,  APPELLANTS,  v.  MARY 
E.  STEVENS  IMPLEADED  WITH  JOHN  O.  STEVENS, 

RESPONDENT. 

Practice — First  department — Motion  to  confirm  referee" 8  report — Special  Terms  — 

at  which  heard. 

Where,  upon  the  trial  of  an  equity  case  at  the  Special  Term  in  the  first  district, 
an  interlocutory  decree  is  made  directing  a  reference  for  certain  purposes,  a 
motion  to  confirm  the  report  must  be  made  at  a  Special  Term  for  enumerated 
motions,  and  not  at  a  Special  Term  and  chambers  for  non-enumerated  motions 
only. 

APPEAL  from  an  order  denying  a  motion  made  at  chambers,  to 
confirm  a  report  of  a  referee  in  an  equity  case  tried  at  Special 
Term. 

H.  Brewster,  for  the  appellants. 
A.  J.  Perry )  for  the  respondent. 

BBADT,  J. : 

This  was  an  action  for  the  foreclosure  of  a  mortgage.  Justice 
VAN  VOBST,  before  whom  the  trial  was  had  at  Special  Term,  made 
an  interlocutory  decree  directing  a  reference  for  certain  purposes, 
and  that  on  the  coming  in  of  the  report  the  plaintiff  have  final 
judgment,  etc.  The  report  of  the  referee  was  sent  back  for  further 
findings,  and  a  supplemental  report  having  been  made,  a  motion 
was  made  at  chambers  and  Special  Term  to  confirm  the  reports. 
This  motion  was  denied,  and  it  would  seem  because  the  motion 
was  not  made  at  the  Special  Term  proper,  the  tribunal  in  which 
the  interlocutory  decree  was  made.  In  the  distribution  of  the 
business  of  this  court  in  this  department,  the  chambers  and  Special 
Term  for  non-enumerated  motions  are  held  each  month,  but  the 
Special  Term  for  enumerated  motions,  and  for  trials  in  equity 
causes  and  of  issues  of  law,  are  not  so  frequently  held,  and  are 
entirely  distinct.  The  tribunal  for  the  disposition  of  contested 
cases  in  equity,  upon  complaint  and  answer,  is  a  different  branch 
of  this  court  fiom  that  of  the  allied  chambers  and  Special  Term, 


516  VON  HEIN  v.  ELKUS. 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

and  the  duties  to  be  performed  in  each  are  well  known  and  clearly 
defined.  When  the  interlocutory  decree  was  entered  herein  the 
proceedings  to  ultimate  a  final  judgment  were  necessarily  to  be 
had  in  the  court  pronouncing  it,  and  hence  it  was  necessary  to  go 
back  to  it  for  that  purpose.  This  was  not  done,  and  the  practice 
of  the  counsel  for  the  respondent  was  erroneous.  He  had  sought 
the  intervention  of  a  court  having,  by  precedent  and  practice,  no 
duty  to  perform  such  as  he  called  for.  It  was  incumbent  upon 
him  to  apply  to  the  tribunal  having  taken  cognizance  of  the  issues 
and  having  passed  upon  them. 

For  these  reasons  the  order  appealed  from  should  be  affirmed ; 
but  we  think,  under  the  circumstances,  without  costs  of  the  appeal 
to  either  party,  and  without  prejudice  to  a  renewal  of  the  applica- 
tion at  the  Special  Term. 

DAVIS,  P.  J.,  and  DANIELS,  J.,  concurred. 
Order  affirmed,  without  costs. 


OTTO  YON  HEIN,  AS  ASSIGNEE  IN  BANKRUPTCY  OF  E  MAN- 
UEL BUCHSTEIN,  A  BANKRUPT,  RESPONDENT,  v.  ISAAC 
ELKUS  AND  EMANUEL  BUCHSTEIN,  APPELLANTS. 

General  assignment — chap.  348  of  1860,  §3  — failure  to  file  bond — Assignment  with- 
out preference  —  bankruptcy  act. 

The  omission  of  an  assignee  for  the  benefit  of  creditors  to  file  the  bond  required 
by  section  8  of  chapter  348  of  1860,  does  not  —  certainly  until  the  inventory  is 
filed — perse  invalidate  the  assignment. 

The  right  to  make  a  general  assignment  for  the  benefit  of  'creditors  is  not  sus- 
pended by  the  provisions  of  the  bankrupt  act,  provided  such  assignment  con- 
tains no  preferences  and  is  not  made  with  intent  to  defraud  the  creditors  of 
the  assignors. 

Baas  v.  O'Brien  (Ct.  App.,  not  yet  published)  followed. 

APPEAL  from  an  order  appointing  the  plaintiff  the  receiver  of 
the  property,  assets  and  effects  of  the  defendant  Buchstein,  which 
the  latter  had  assigned  to  the  defendant  Elkus,  under  and  by  virtue 


VON  HEIN  u.  ELKUS.  517 


FIKST  DEPARTMENT,  OCTOBBK  TEBM,  1876. 


of  a  general  assignment  for  the  benefit  of  creditors,  dated  and 
recorded  on  the  23d  of  November,  1875. 

The  facts  are  as  follows :  On  the  23d  day  of  November,  1 875, 
the  defendant  Buchstein  made  to  Elkus  a  general  assignment, 
without  preferences,  for  the  benefit  of  creditors,  under  the  laws  of 
the  State  of  New  York. 

On  or  abont  the  30th  day  of  November,  1875,  a  petition  in 
bankruptcy  was  filed  against  Buchstein  in  the  United  State  Dis- 
trict Court,  Southern  District  of  New  York,  and  such  proceedings 
were  had  thereon  that,  on  or  about  the  19th  day  of  February, 
1876,  the  said  Buchstein  was  adjudged  a  bankrupt ;  and  on  that 
day  Otto  Von  flein  was  appointed  assignee  of  said  bankrupt's 
estate.  And  on  the  24th  day  of  February,  1876,  Isaac  Dayton, 
the  register  in  bankruptcy  to  whom  the  matter  was  referred,  made 
to  Von  Hein,  as  assignee,  a  formal  assignment  of  the  estate  of 
Bucbstein,  under  the  provisions  of  the  fourteenth  section  of  the 
United  States  bankrupt  act. 

The  complaint  avers  that  the  plaintiff,  as  assignee,  demanded 
from  Elkus  the  possession  of  the  property,  and  that  Elkus  refused 
to  deliver  it  to  him. 

The  answer  admits  the  demand  by  the  plaintiff,  as  asaignee  under 
the  United  States  bankrupt  law,  and  the  refusal  of  the  defendant 
to  deliver  it  to  him. 

The  complaint  also  charges  that  the  assignment  to  Elkus  was 
made  with  intent  to  delay  the  operation  of  the  bankrupt  act,  and 
also  to  hinder,  delay  and  defraud  the  creditors  of  Buchstein. 

These  allegations  are  denied  by  the  answer. 

The  defendant  Elkus  admitted  that  he  had  disposed  of  certain 
goods  belonging  to  the  bankrupt  before  filing  the  bond  required 
by  the  act  of  1860,  but  alleged  that  "  at  the  time  of  such  sales  the 
said  assignee  had  his  bond  executed  and  ready  to  be  filed,  and  that 
the  same  would  have  been  filed  but  for  the  injunction  obtained  at 
the  instance  of  the  plaintiff  in  the  bankruptcy  court,  and  served 
in  said  assignee." 

A.  J.  Dittenhoefer  and  Cornelius  A.  Runkle,  for  the  appellant* 
D.  M.  Porter,  for  the  respondent. 


518  VON  HEIN  v.  ELKUS. 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

BRADY,  J. : 

The  assignment  made  by  the  defendant  Buchstein  to  hia 
co-defendant,  Elk  us,  contained  no  preferences,  and  is  not  assailed 
by  proof  showing  that  it  was  intended  to  defraud  creditors.  Its 
invalidity  seems  to  have  been  predicated,  therefore,  of  the  omission 
of  the  assignee  to  tile  a  bond  as  required  by  the  act  of  1860.  (Lu\\  H 
of  1860,  chap.  348.)  The  statutes  of  1860  and  the  amendments  of 
1874  (Laws  of  1874,  chap.  600),  provide,  on  that  subject,  that  the 
debtor  making  the  assignment  shall  file  an  inventory  or  schedule 
within  twenty  days  after  the  date  thereof,  but  if  it  be  omitted,  or 
the  debtor  refuse  to  make  it,  the  assignment  shall  not  for  that 
reason  become  invalid  or  ineffectual.  The  assignees  are  then 
authorized  to  make  an  inventory  within  six  months  of  the  date  of 
the  assignment  of  all  the  property  which  they  may  be  able  to  find, 
and  compulsory  measures  are  provided  to  assist  them.  The  assign- 
ees are  required,  within  ten  days  after  the  delivery  of  the  inventory 
or  schedule  to  the  county  judge  (and  before  they  shall  have  power 
or  authority  to  sell,  dispose  of,  or  convert  to  the  purposes  of  the 
trust,  any  of  the  assigned  property),  to  enter  into  the  bond  pro- 
vided for;  and  it  is  declared  that  the  bond  shall  be  filed  in  the 
county  clerk's  office  where  the  assignment  is  recorded.  The  bond 
is  to  follow  the  inventory  which  is  to  be  furnished  by  the  assignor, 
and  the  obligation  to  give  it  does  not  seem  to  arise  until  the  inven- 
tory is  made  as  directed.  When  the  assignor  omits  or  refuses  to 
make  the  inventory,  a  case  is  presented  for  which,  in  reference  to 
the  bond  of  the  assignees,  no  provision  is  made,  and  upon  a  strict 
construction  of  the  statute  no  bond  could  be  exacted  in  such  a 
case,  because  the  contemplated  inventory  is  not  given. 

The  assignees,  nevertheless,  would  not  only  then  have  the  right 
themselves  to  make  the  inventory,  but  to  invoke  the  power  of  a 
court  to  assist  in  its  preparation.  An  inchoate  right  to  the  prop- 
erty would  in  the  mean  time  vest  in  them  for  the  purposes  of  the 
trust  (Juliand  v.  Ilathbone,  39  N.  Y.,  369),  although  they  would 
not  be  empowered  to  dispose  of  it  until  the  required  bond  was  given. 

The  object  of  the  inventory  is  to  aid  in  determining  the  amount 
of  the  bond  to  be  given.  It  seems,  therefore,  taking  all  the  pro- 
visions of  the  act  of  1860,  and  amendments,  into  consideration , 
that  the  omission  to  execute  and  file  a  bond  would  not,  per  se, 


VON  HEIN  v.  ELKUS.  519 

FIBST  DEPARTMENT,  OCTOBER  TEBM,  1876. 

invalidate  an  assignment ;  and  such  appears  to  have  been  the 
decision  in  the  Court  of  Appeals  in  the  case  of  Thrasher  v.  Bent- 
ley  (59  N.  Y.,  649),  the  report  of  which  is,  however,  meagre  and 
unsatisfactory.  It  seems  to  be  decided  also  in  that  case  that  the 
common-law  right  to  make  an  assignment  existed,  even  though  by 
operatiou  of  the  bankrupt  law  the  statute  of  1860  was  suspended ; 
but  the  error  of  this  view  arises  from  the  fact  that  the  statute  regu- 
lates the  exercise  of  the  right,  and  both  must  fall  or  stand  together. 

The  Court  of  Appeals  had  already  held  that  this  was  the  effect 
of  the  statute,  because  it  was  declared  that  the  omission  to  acknowl- 
edge the  assignment,  and  to  have  the  proof  thereof  certified  before 
delivery,  in  accordance  with  that  statute,  rendered  it  void.  (Jul- 
land  v.  Rathbone,  39  N.  Y.,  369,  supra.)  That  proceeding  was  not 
necessary  by  the  common  law. 

The  Court  of  Appeals  has  also  recently  determined  a  mooted 
question,  namely,  whether  the  effect  of  the  provisions  of  the  bank- 
rupt law  relating  thereto  had  not  suspended  the  right  to  make  an 
Assignment  for  the  benefit  of  creditors,  and  in  favor  of  the  right, 
provided  the  assignment  be  one  without  preferences,  and  it  be 
made  without  intent  to  defraud  creditors.  (Haas  v.  O'Brien,  MS., 
not  yet  reported.)  *  In  this  case  we  have  therefore  the  necessary 
elements  to  sustain  the  assignment  made.  It  is  not  per  se  void. 
It  is  not  void  because  of  the  omission  to  file  the  necessary  bond. 
It  is  not  void  because  it  was  executed  in  good  faith,  and  contains 
no  preferences.  The  plaintiff  did  not,  therefore,  by  virtue  of  his 
appointment  as  assignee  in  bankruptcy,  acquire  the  right  to  pos 
sess  the  property.  He  could  have  applied,  doubtless,  to  compel 
the  giving  of  the  bond,  or  the  surrender  of  the  property,  if  one 
were  not  given,  because,  as  we  have  seen,  the  right  to  appropriate 
the  property  was  not  absolute  until  the  bond  was  given.  (Act  of 
1 860,  chap.  348,  §  3  ;  Juliand  v.  RatKbone,  supra.} 

•In  Mayer  v.  Ilttlman  (1  Otto,  496),  the  Supreme  Court  of  the  United  State* 
he.i  that  an  assignment  by  an  insolvent  debtor  of  his  property  to  trustees,  for 
the  actual  and  common  benefit  of  all  his  creditors,  is  not  fraudulent ;  and  that 
when  executed  rix  months  before  proceedings  in  bankruptcy  are  taken  against 
the  debtor,  it  cannot  be  assailed  by  an  assignee  in  bankruptcy  subsequently 
appointed.  The  court  in  the  same  case  say  that  such  an  assignment,  even  though 
executed  within  six  months  of  the  filing  of  the  petition,  is  not  void,  but  decline 
to  express  any  decided  opinion  as  to  whether  or  not  it  is  voidable.  —  f  RKP. 


520  NORTON  v.  MACKIE. 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1878. 

For  these  reasons,  we  think  the  order  appointing  the  receiver 
was  erroneous  and  should  be  reversed,  with  ten  dollars  costs  and 
the  disbursements  of  the  appeal,  with  liberty,  however,  to  renew 
the  application  for  the  appointment  of  a  receiver  upon  further  and 
proper  proof. 

DAVIS,  P.  J.,  and  DANIELS,  J.,  concurred. 

Order  reversed  with  ten  dollars  costs  and  disbursements,  with 
liberty  to  renew  application  for  the  appointment  of  a  receiver 
upon  further  and  proper  proof 


MARGARET  R.  NORTON,  APPELLANT,  v.  ROBERT  MACKIE 
AND  SIMON  F.  MACKIE,  RESPONDENTS. 

Security  for  costs —  Resident  aliens- 

fhe  statute  requiring  non-residents  to  give  security  for  costs  in  actions  brought 
by  them,  does  not  require  such  security  to  be  given  by  aliens  residing  in  this 
State,  unless  such  residence  is  shown  to  be  merely  temporary. 

APPEAL  from  an  order  requiring  the  plaintiff  to  file  security  for 
costs  as  a  non-resident. 

Dennis  McMahon,  for  the  appellant. 
James  K.  Hill,  for  the  respondents. 

BEADY,  J. : 

The  plaintiff  in  this  action,  if  a  resident  of  this  country,  could 
not  register  her  vessel  as  the  owner  of  a  British  ship  unless  a  member 
of  some  British  factory  or  agent  for  or  partner  in  a  home  copart- 
nership actually  carrying  on  trade  in  Great  Britain  or  Ireland. 
(Abbott  on  Shipping  [7th  Am.  ed.],  page  83.)  The  affidavit  of  the 
plaintiff,  disclosed  on  the  motion,  may  be  regarded  as  a  declaration 
that  she  still  continued  to  be  a  British  subject,  and  that  might  be 
although  her  residence  was  in  the  State  of  New  Y"ork.  She  would 


NORTON  y.  MACKIE.  521 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

not  have  the  right  to  avail  herself  of  the  privilege  of  her  nation- 
ality in  relation  to  ships,  etc.,  during  the  continuance  of  her  foreign 
residence,  but  if  she  did  so  it  would  not  destroy  the  fact  of  such 
foreign  residence.  In  other  words,  although  the  formula  which 
the  plaintiff  went  through  in  reference  to  her  vessel  may  have  been 
improper,  because  she  did  not  disclose  the  fact  of  her  residence  out 
of  the  dominion  of  Great  Britain ;  nevertheless  she  may  have  been, 
at  the  time  of  her  declaration,  a  resident  of  this  city,  and  such 
seems  to  have  been  the  fact.  The  statute  in  reference  to  a  security 
for  costs  does  not  apply  to  resident  aliens  unless  such  residence  is 
clearly  temporary,  which  is  not  the  case  here.  The  plaintiff  swears 
that  she  has  resided  in  this  city  since  June,  1875,  and  has  not  had 
any  idea  of  making  any  other  country  or  State  her  permanent 
place  of  residence ;  and  this  gathers  support  from  the  fact  that  her 
husband  is  a  native  of  this  State,  and  a  resident  of  this  city,  doing 
business  here.  The  seeming  inconsistency  between  her  avowed 
residence  here  and  her  claim  as  a  British  subject  for  purposes  which 
can  be  claimed  only  by  residents  of  Great  Britain  or  her  colonies, 
except  under  special  circumstances,  which  do  not  appear  to  exist 
herein,  impressed  the  learned  justice  presiding  at  the  Special  Term 
and  led  him  away  from  the  real  question  involved,  namely,  that  of 
residence.  There  can  be  no  doubt  that,  residing  with  her  husband 
in  this  city,  without  any  intention  to  depart  hence,  or  make  any 
other  place  her  residence,  she  was  not  within  the  purview  of  the 
statute. 

It  cannot  be  questioned,  either,  that  an  alien  resident,  tempora- 
rily here,  would  be  within  its  provisions.  There  are  many  old  and 
permanent  residents  of  this  city  who  have  not  become  citizens  of 
this  country,  and  have  not,  therefore,  enjoyed  the  blessings  of  our 
government.  They  are  not,  however,  for  this  reason,  subjected,  in 
the  prosecution  of  their  demands,  to  any  extraordinary  procedure. 
The  order  made  in  this  action  should,  for  these  reasons,  be  reversed 
without  prejudice  to  the  right  of  the  defendants  to  renew  it,  if  the 
circumstances  existing  warrant  it,  or  any  new  facts  be  developed 
which  fortify  the  attitude  taken  by  them. 

DAVIS,  P.  J.,  and  DANIELS,  J.,  concurred. 

Order  reversed. 

HXJN— VOL.  VHL        66 


522  McVEY  v.  CANTRELL. 

FIBST  DEPARTMENT,  OCTOBER  TERM,  1876. 


MARY    MoVEY,    PLAINTIFF,    v.    MARY    A     CANTRELI^ 

DEFENDANT. 

JOHN   G.   0.   TADDIKEN,  PLAINTIFF,  v.  MARY   A.  OAN- 
TRELL,  DEFENDANT. 

Irrelevant  and  scandalous  matter  —  responsibility  for  insertion  of. 

The  responsibility  for  the  insertion  of  irrelevant  and  scandalous  matter  in  plead- 
ings rests  upon  the  attorney  preparing  the  same,  and  he  should  be  charged  with 
the  payment  of  the  costs  of  a  motion  to  have  such  matter  stricken  therefrom. 

APPEAL  from  an  order  made  at  the  Special  Terra,  directing  that 
certain  allegations  should  be  stricken  out  of  an  affidavit  as  scandal- 
ous and  impertinent. 

The  plaintiffs  in  these  cases  having  recovered  judgment  herein, 
defendant,  upon  an  affidavit  setting  forth  the  fact  of  the  recovery  of 
the  judgment,  the  giving  of  undertakings  upon  appeals  therefrom 
and  the  justification  of  the  sureties  thereto,  and  the  intention  of  the 
defendant  to  obtain  a  loan  from  an  insurance  company,  moved  to 
have  the  premises  upon  which  the  loan  was  to  be  made  relieved 
from  the  lien  of  the  judgment.  The  attorney  for  the  plaintiff  made 
an  affidavit  to  be  read  in  opposition  to  the  motion,  containing 
defamatory  matter. 

This  matter  was,  upon  the  application  of  the  defendant,  stricken 
out  as  "  scurrilous,  irrelevant  and  defamatory,  and  as  having  been 
maliciously  and  unnecessarily  inserted." 

H.  H   Morange,  for  the  respondent. 
D.  T.  Robertson,  for  the  appellant. 

BRADY,  J. : 

The  matter  which  was  stricken  out  by  the  order  appealed  from 
\vas  irrelevant,  impertinent  and  scandalous.  It  is  not  necessary  to 
discuss  that  phase  of  the  appeal.  Being  of  the  character  described, 
the  responsibility  of  its  insertion  rests  upon  the  appellant's  attor- 
ney, and  not  upon  the  client.  It  is  the  duty  of  the  former  to 


McVEY  v.   CANTRELL. 


FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 


observe  strictly  the  rules,  which  are  well  defined  and  which  ha 
must  be  supposed  to  understand,  in  regard  to  such  matter.  It.  is 
not  necessary,  therefore,  to  discuss  this  feature  of  the  appeal.  The 
rule  is  settled  by  a  series  of  decisions  ;  but  if  it  were  not  its  pro- 
priety springs  so  naturally  from  the  relations  of  attorneys  and 
counselors  to  the  courts  and  to  suitors  and  to  each  other,  that  it 
requires  nothing  more  than  a  statement  of  it  to  make  it  apparent 
and  just  and  indispensable  to  the  preservation  of  the  dignity  of  the 
courts.  The  responsibility  devolving  upon  the  attorney,  it  was 
proper  that  the  payment  of  the  costs  awarded  should  be  made  by 
him,  and  it  is  equally  just  that  the  costs  of  this  appeal  should  be 
borne  by  him.  The  only  duty  for  this  court  to  perform  is,  there- 
fore, to  order  the  affirmance  of  the  order,  with  ten  dollars  costs  and 
the  disbursements  of  this  appeal,  to  be  taxed  and  to  be  paid  by  the 
appellant's  attorney. 

This  opportunity  to  censure  the  habit  of  placing  upon  the 
tecords  of  this  court  scurrilous  or  scandalous  matters  cannot  be 
overlooked.  It  is  regarded  as  reprehensible,  highly  so,  and  it  is 
to  be  hoped,  for  the  honor  of  the  profession,  that  it  may  never 
again  be  necessary  for  this  court  thus  to  express  itself.  The  occa- 
sions are  rare  on  which  the  officers  of  the  court  so  far  forget  them- 
selves, but  legal  ethics  will  not  prevail  in  this  regard  until  we 
can  say  they  never  do. 

It  does  not  promote  the  ends  of  justice  or  contribute  to  the 
strength  of  a  lawyer's  advocacy,  to  indulge  in  personalities,  in 
writing  or  by  speech,  and  the  omission  of  both  adds  to  his  repu- 
tation and  dignity. 

Order  affirmed,  with  ten  dollars  costs  and  the  disbursements  of 
this  appeal,  to  be  paid  by  the  appellant's  attorney  within  twenty 
days  after  taxation  and  service  of  a  copy  of  the  order  to  be 
entered  herein. 

DAVIS,  P.  J.,  and  DANIELS,  J.,  concurred. 

Orders  affirmed,  with  ten  dollars  costs  and  disbursements,  to  be 
paid  by  the  appellant's  attorney  within  twenty  days  after  taxation 
and  service  of  copy  of  order  to  be  entered  herein. 


524  HO  WELL  y.  VAN  S1CLEN. 

FTBST  DKPAKTMBNT,  OCTOBER  TKHXI,  1876. 


ALEXANDER    J.    HOWELL,    RESPONDENT,   v.   HENRY   K. 

VAN  SICLEN,  AND  OTHERS,  AS  EXECUTORS,  ETC.,  APPELLANTS. 

THE  SAME  v.  THE  SAME. 

Ootti  —judgment  reversed  on  appeal,  "  costs  to  defendant  to  abide  event "  —  only  affeett 

costs  of  appeal. 

Upon  appeal  from  a  judgment  recovered  by  the  plaintiff  a  new  trial  was 
granted,  "with  costs  to  the  defendant  to  abide  the  event."  Plaintiff  having 
recovered  a  judgment  upon  the  new  trial,  taxed  his  costs  for  both  trials.  Held, 
that  he  was  entitled  so  to  do  ;  that  the  order  of  the  General  Term  only  deprived 
him  of  the  costs  of  the  appeal. 

APPEAL  from  aii  order  of  the  Special  Term  affirming  a  taxation 
of  costs  by  the  clerk. 

The  case  was  twice  tried,  resulting  in  a  judgment  each  time  in 
favor  of  the  plaintiff. 

Upon  an  appeal  from  the  first  judgment  a  new  trial  was  granted 
44  with  costs  to  the  defendant  to  abide  the  event." 

Upon  the  taxation  of  costs  after  the  second  trial,  plaintiff  was 
allowed  to  include  the  bill  of  costs  taxed  upon  the  first  trial. 

The  defendant,  upon  the  taxation,  "  objected  and  excepted  to  each 
and  every  item  in  the  foregoing  bill  of  costs  taxed  on  the  first  trial, 
on  the  ground  of  the  language  of  the  judgment  of  reversal,  that 
only  defendants  should  have  costs  on  the  new  trial,  if  successful." 

There  was  no  question  as  to  the  propriety  of  the  taxation,  unless 
the  order  of  reversal,  by  its  terms,  precluded  it. 

Oeo.  W.  Van  Siclen,  for  the  appellant. 
E.  I.  Spink,  for  the  respondent. 

BBADT,  J. : 

When  a  new  trial  is  ordered  the  costs  of  the  appeal  are  in  the 
discretion  of  the  court.  (Code,  §  306 ;  Ayers  v.  Western  Railroad 
Co.,  49  N.  Y.,  660 ;  Sturges  v  Spoford,  58  id.,  103.) 

The  costs  in  the  action  are  a  statutory  right  dependent  upon  suc- 
cess, except  when  they  are  as  in  certain  cases  designated  (Code, 


HOWELL  v.  VAN  SICLEN.  525 

FIRST  DEPAHTMENT,  OCTOBER  TERM,  1876. 

§  306,  supra),  in  the  discretion  of  the  court.  When  this  court 
granted  a  new  trial  with  costs  to  the  defendant  to  abide  the  event, 
it  was  the  costs  of  the  appeal  and  not  the  costs  in  the  action  which 
were  allowed.  The  plaintiff  having  succeeded  was  entitled  to 
costs,  but  the  defendant  having  reversed  the  judgment  was  allowed 
costs  of  the  proceeding  taken  by  him  for  that  purpose,  provided  he 
succeeded  in  the  action.  The  plaintiff  could  not  have  them  in  any 
event,  because  he  did  not  maintain  his  judgment.  The  defendant 
was  not,  when  the  appeal  was  taken,  entitled  to  costs ;  he  had  not 
succeeded  in  the  action ;  and  the  presumption  must  be  against  him, 
if  any  be  indulged  in,  where  the  reversal  of  the  judgment  rests 
upon  some  error  committed  upon  the  trial.  He  was  not  the  suc- 
cessful party,  and  still,  insisting  upon  his  non-liability  for  the  plain- 
tiff's claim,  he  demanded  a  new  trial.  He  was  again  unsuccessful, 
aud  the  plaintiff  became  by  the  operation  of  the  statute  entitled  to 
the  costs  in  the  action,  except  the  costs  of  the  appeal.  These  costs 
were  awarded  him,  and  properly.  He  was  the  successful  party. 
The  provision  in  the  Code  allowing  a  party  to  offer  to  let  the  plain- 
tiff take  judgment  for  a  sura  named,  was  designed  to  protect  him 
against  unnecessary  litigation ;  and  where  he  does  not  avail  him 
self  of  it  the  burden  imposed  by  the  controversy  is  voluntarily 
assumed.  He  cannot  complain  if  proceedings  which  he  has  ren 
dered  necessary  by  his  refusal  to  pay  or  adjust  a  legal  demand  are 
attended  with  expenses  which  he  is  required  to  pay. 

We  think,  for  these  reasons,  that  the  appeal  from  the  taxation 
was  not  well  taken,  and  that  the  order  appealed  from  relating 
thereto  should  be  affirmed  with  ten  dollars  costs  and  the  dis- 
bursements of  this  appeal.  We  have  examined  the  appeal  from 
the  order  making  an  allowance  of  five  per  cent  on  the  amount  of 
the  judgment,  and  which  is  about  $215.  We  think  the  various 
proceedings  in  this  action,  including  a  commission  and  two  trials, 
will  warrant  the  allowance  made. 

We  think  the  order  in  that  respect  should  also  be  affirmed,  with 
ten  dollars  costs  and  the  disbursements  of  the  appeal. 

DAVIS,  P.  J.,  and  DANIELS,  J.,  concurred. 

Orders  affirmed  with  ten  dollars  costs  and  disbursement* 


526  WARD  v.  JAMES. 


FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 


WILLIAM  WARD,  RESPONDENT,  v.  SARAH  JAMES,  IMPLEADKD 

WITH    OTHEB8,    APPELLANT. 
fbredoture — »tay  of  proceedings  —  adjournments  —  auctioneer's  fees  —  referee* »  feet. 

Where,  after  a  referee  has  been  appointed  to  sell  real  estate,  in  pursuance  of  a 
judgment  of  foreclosure,  and  a  notice  of  sale  has  been  duly  published,  the 
defendant  serves  an  undertaking  to  stay  proceedings  upon  appeal,  in  pursuance 
of  section  341  of  the  Code,  the  plaintiff  is  not  required  to  abandon  the  pro- 
ceedings instituted  by  him,  but  may  adjourn  the  sale  until  it  can  be  deter 
mined  whether  or  not  the  sureties  will  justify. 

No  fees  can  be  allowed  to  an  auctioneer  for  services  rendered  upon  the  adjourn- 
ment of  a  sale  by  a  referee. 

A  referee  is  only  entitled  to  receive  the  same  fees  for  selling  real  estate,  as  by  law 
is  allowed  to  a  sheriff. 

APPEAL  from  an  order  of  the  Special  Term  allowing  certain  costs 
and  disbursements,  and  directing  the  same  to  be  paid  to  the 
appellant. 

Edward  D.  James,  for  the  appellant. 
Ko  appearance  for  the  respondent. 

DAVIS,  P.  J. : 

Costs  and  fees  as  between  parties  to  an  action,  are  the  creatures 
of  statute.  Where  no  statutory  right  to  charge  or  allow  them  is 
shown,  no  legal  right  exists.  (Downing  v.  Marshall,  37  N.  Y., 
380.)  The  question  in  this  case  is  not,  therefore,  what  the  referee 
ought  to  have  for  his  services  and  disbursements,  but  what  the  law 
allows ;  and  the  court  is  bound  to  administer  the  law  as  it  is  found 
to  be  declared  by  statute.  This  was  an  action  for  the  foreclosure 
ul  a  mortgage.  The  plaintiff  recovered  a  judgment  directing  a 
sale.  A  referee  was  appointed  to  make  such  sale,  who  prepared 
and  inserted  an  advertisement  of  sale  in  the  Daily  Register.  The 
defendant  served  notice  of  appeal  from  the  judgment,  and  pro- 
cured a  judge's  order  fixing  the  amount  of  security  for  the  purpose 
of  staying  proceedings.  She  gave  an  undertaking  with  two  sure- 
ties in  the  amount  so  fixed,  accompanied  by  the  affidavit  of  the 


WAKD  y,  JAMES.  527 


FIRST  DEPARTMENT,  OCTOBEU  TERM,  1876. 


sureties  that  they  were  each  worth  double  the  amount  specified  in 
the  undertaking,  as  required  by  section  341  of  the  Code.  These 
proceedings  were  completed  on  the  day  before  the  day  fixed  in  the 
notice,  for  sale,  and  were  served  on  the  plaintiff's  attorney.  The 
referee  attended  with  an  auctioneer  for  the  purpose  of  making 
sale,  but,  on  being  served  with  a  copy  of  the  notice  of  appeal  and 
undertaking,  he  adjourned  the  sale  for  one  week,  and  afterwards 
made  three  further  adjournments,  all  of  which  were  advertised  iii 
the  Register,  and  then  the  proceedings  were  dropped.  The  affida- 
vit shows  that  these  several  adjournments  were  made  at  the  direc- 
tion of  the  plaintiff's  attorney,  for  the  purpose  of  giving  the 
defendant  an  opportunity  to  perfect  her  undertaking,  by  the  justi- 
fication of  the  sureties,  or  of  other  sureties,  the  first  having  failed  to 
justify.  Section  341  of  the  Code  gives  the  plaintiff  the  right  to  except 
to  the  sureties  in  the  undertaking  within  ten  days  after  notice  of  the 
appeal ;  and  provides  that  unless  they  or  other  sureties  justify,  as 
prescribed  by  sections  195  and  196,  within  ten  days  thereafter,  the 
appeal  shall  be  regarded  as  if  no  undertaking  had  been  given.  As 
steps  to  justify  before  the  judge  were  taken  in  this  case,  it  is  fair 
to  presume  that  due  exception  to  the  sufficiency  of  the  sureties 
was  made  by  the  plaintiff's  attorney.  Under  such  circumstances 
we  think  the  right  to  adjourn  the  sale  until  it  should  be  determined 
whether  or  not  the  sureties  would  justify,  properly  existed.  The 
stay  was  a  contingent  one,  and  would,  by  the  provisions  of  the 
Code,  have  ceased  upon  failure  to  justify ;  and  the  plaintiff'  was 
not  required  to  abandon  the  steps  already  taken  before  notice  of 
the  appeal  was  given,  until  the  sureties  had  completely  justified. 
We  think  that  reasonable  adjournments  may  be  had  in  such  cases 
until  the  justification  shall  be  complete.  In  our  opinion,  the 
expenses  of  advertising  were  properly  chargeable.  Their  amount, 
however,  is  regulated  by  statute ;  and  if  not  charged,  as  defendant 
alleges,  in  accordance  with  the  statute,  she  is  entitled  to  have  them 
taxed,  and  reduced  to  the  amount  fixed  by  statute.  The  charges 
for  auctioneer's  fees  on  adjourning  the  sale  are  not  allowable  No 
statute  gave  such  fees  at  the  time  these  proceedings  were  had. 
The  only  way  in  which  auctioneers  could  be  compensated  upon 
such  sales  was  by  making  their  fees  a  part  of  the  terms  of  sale,  tc 
be  paid  by  the  purchasers ;  and  if  that  course  was  not  abused  tc 


528  MYER  v.  PEOPLE. 


FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 


the  prejudice  of  defendants,  there  would  be  no  reason  for  the  court 
to  interfere.  In  this  case  there  was  no  sale,  and  no  statute  is  pro- 
duced to  us  showing  that  fees  for  adjournments  by  auctioneers  can 
be  charged  in  such  cases. 

A  gross  sum  of  fifty  dollars  was  allowed  to  the  referee.  Doubt- 
less, this  was  no  more  than  a  fair  compensation,  but  its  allowance 
was  erroneous.  The  court  had  no  power  to  award  it.  This  court 
had  occasion  to  examine  the  question  of  referees'  fees  in  Innes  v. 
Purcett  (2  N.  Y.  S.  0.  [T.  &  0.],  541).  Where  referees'  fees  are 
in  dispute  they  are  the  subject  of  taxation. 

It  follows  from  these  views,  that  the  order  of  the  court  below 
must  be  reversed,  but,  under  the  circumstances,  without  costs ;  and 
an  order  entered  directing  that  the  costs  claimed  in  this  case  be 
adjusted  by  the  clerk  of  the  court,  in  accordance  with  the  pro- 
visions of  the  statute  and  the  decision  of  the  court  in  the  case 
above  referred  to. 

DANIELS,  J.,  concurred. 

Present — DAVIS,  P.  J.,  and  DANIELS,  J. 

Order  reversed  without  costs ;  order  entered  directing  that  the 
costs  claimed  be  adjusted  by  the  clerk,  in  accordance  with  the  pro- 
visions of  the  statute,  and  the  decision  of  the  court  in  the  case 
referred  to  in  the  opinion. 


JOHN  MYER,  PLAINTIFF  m  EBEOE,  v.  THE  PEOPLE  OF  THE 
STATE  OF  NEW  YORK,  DEFENDANTS  IN  ERROR. 

Writ  of  error  —  what  errors  witt  be  considered  on  —  charge  of  judge. 

Upon  the  trial  of  the  plaintiff  in  error  for  rape,  the  court  refused  to  charge 
that  he  must  have  "  accomplished  his  purpose  in  spite  of  the  utmost  reluctance 
and  resistance  on  her  part."  The  prisoner  was  convicted  of  an  assault  with 
intent  to  commit  rape.  Upon  a  writ  of  error  to  review  this  conviction,  held, 
that  as  the  refusal  to  charge,  even  if  it  were  error,  did  not  in  any  way  affect 
the  crime  of  which  he  was  convicted,  but  only  that  of  which  he  was  acquitted 
it  furnished  no  ground  to  reverse  the  judgment. 


MYER  v.  PEOPLE. 


FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 


WBIT  of  error  to  the  Court  of  General  Sessions  of  the  city  and 
county  of  New  York,  to  review  the  conviction  and  sentence  of  the 
plaintiff  in  error  of  an  assault  with  an  intent  to  commit  a  rape. 

Wm.  T.  Howe,  for  the  plaintiff  in  error. 

B.  K.  Phelps,  district  attorney,  for  the  people. 

DAVIS,  P.  J. : 

The  prisoner  was  indicted  for  the  crime  of  rape.  But  one  of  the 
exceptions  taken  in  the  course  of  the  testimony  is  urged  upon  our 
attention  by  the  counsel  for  the  prisoner.  That  is  said  in  his 
points,  to  be  found  at  folio  68  of  the  error  book  ;  and  on  the  points 
is  stated  as  follows  :  "  The  witness  John  Koehler  was  asked  if  he 
had  had  intercourse  with  this  woman  (meaning  the  prosecutrix). 
The  court  ruled  out  the  question.  This  was  clearly  error." 

On  referring  to  "  folio  68  "  no  such  question  and  no  such  ruling 
tire  to  be  found.  The  counsel  was  there  examining  the  witness  as 
to  the  complainant's  character.  He  asked :  "  Do  you  know  this 
woman's  character  ?"  The  witness  replied  :  "No,  I  don't."  The 
counsel  then  asked:  ''You  have  a  good  deal  of  intercourse  with 
her?"  This  question  was  objected  to  and  dropped,  without  ruling 
or  exception.  Of  course  in  the  absence  of  a  ruling  and  exception, 
there  is  nothing  for  us  to  consider.  But  the  question  itself  did 
not  relate  to  sexual  intercourse ;  it  apparently  related  to  innocent 
general  or  business  intercourse,  from  which  knowledge  of  her 
general  character  might  be  derived. 

We  have  looked  at  all  the  exceptions  taken  in  the  course  of  the 
trial  prior  to  the  charge,  although  they  are  not  pressed  upon  us  in 
the  points,  and  find  none  of  sufficient  importance  to  justify  a 
reversal. 

At  the  close  of  the  charge  of  the  court,  the  counsel  for  the  pris- 
oner asked  the  court  "  to  charge  the  jury,  in  order  to  find  the 
prisoner  guilty  of  the  charge,  they  must  find  that  he  accomplished 
his  purpose  in  spite  of  the  utmost  reluctance  and  resistance  on  her 
part."  The  court  responded  :  "  If  she  consented,  the  criminal 
character  of  the  offense  is  done  away  with  ; "  and  afterwards,  on 
being  asked  if  he  declined  to  charge  as  above  requested,  the  court 
answered,  "  Yes,  sir ; "  and  an  exception  was  then  duly  taken. 
HUN  — VOL.  VIII.  67 


530  MYER  v.  PEOPLE. 


FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 


This  refusal  to  charge  is  the  alleged  error  chiefly  relied  upon  by 
the  prisoner's  counsel. 

But  in  this  case,  although  the  prisoner  was  indicted  for  rape,  the 
conviction  was  of  an  assault  with  intent  to  commit  rape,  and  for 
that  crime  judgment  was  pronounced  upon  him.  The  request 
related  to  a  crime  of  which  the  prisoner  was  not  convicted ;  and 
even  if  the  refusal  would  have  been  clear  error  had  the  prisoner 
been  convicted  of  rape,  it  is  not  perceived  that  any  error  can  be 
alleged  when  the  conviction  is  of  an  assault  with  an  intent  to  com- 
mit rape.  The  prisoner  cannot  be  said  to  have  been  legally  injured 
in  any  degree  by  such  a  refusal.  The  charge  requested  would  have 
been  entirely  inappropriate  if  the  indictment  had  been  for  an 
assault  with  intent.  It  would  in  such  a  case  have  been  gross  error 
to  have  said,  that  to  find  the  prisoner  guilty,  the  jury  must  be  sat- 
isfied that  he  accomplished  his  purpose  in  spite  of  the  utmost 
reluctance  and  resistance  on  the  part  of  the  female  assaulted. 
As  we  are  considering  a  conviction  and  judgment  of  assault  with 
intent  to  commit  rape  (which  necessarily  in  this  case,  involves  an 
acquittal  of  the  crime  of  rape),  we  must  confine  ourselves  to  such 
errors,  if  any  were  committed,  as  can  be  said  to  have  injuriously 
affected  the  prisoner  in  respect  to  the  crime  of  which  he  was  con- 
victed, without  regard  to  those  which  affected  the  crime  of  which 
he  was  acquitted.  If  a  prisoner  who  is  indicted  for  murder,  be 
convicted  of  assault  and  battery,  he  cannot  allege  on  error  that  the 
court  erroneously  defined  the  crime  of  murder,  or  the  several 
degrees  of  manslaughter. 

We  do  not  therefore,  pass  upon  the  question  whether  there  was 
error  in  the  refusal  of  the  court  to  charge  as  requested,  or  in  what 
was  said  in  response  to  the  request ;  nor  whether  exceptions  were 
properly  taken  to  raise  the  question  of  error  which  might  arise  by 
coupling  the  response  with  the  request. 

There  are  no  legal  grounds  for  disturbing  the  conviction  and 
judgment,  and  they  are  therefore  affirmed. 

BEADY  and  DANIELS,  JJ.,  concurred. 

\ 

Judgment  affirmed. 


DEVLIN  v.  SHANNON.  531 

FIRST  DEPARTMENT,  OCTOBEB  TEBM,  1876. 


JAMES    DEVLIN,    PLAINTIFF,    v.    JOHN    SHANNON    AND 

OTHERS,  DEFENDANTS. 

THE  SAME  v.  THE  SAME. 

Inquest?  —  Mvle  36  —  Chancery  practice. 

Rule  36,  authorizing  inquests  to  be  taken  in  cases  in  which  no  sufficient  affidavit 
of  merits  has  been  made  and  served,  does  not  apply  to  actions  in  equity. 

In  an  action  to  foreclose  a  mortgage,  an  inquest  taken  by  the  plaintiff  upon 
defendants'  failure  to  file  an  affidavit  of  merits,  is  irregular,  and  a  judgment 
entered  thereon  will  be  set  aside. 

APPEALS  from  orders  denying  motions  to  open  defaults  in  the 
above  entitled  actions. 

William  A.  Comsen,  for  the  appellant. 
Jacob  A.  Gross,  for  the  respondent. 

DAVIS,  P.  J. : 

These  were  actions  in  equity  brought  to  foreclose  mortgages  of 
leasehold  premises  owned  by  the  appellant  Shannon.  The  appel- 
lant interposed  answers  alleging  the  defense  of  usury.  No  affida- 
vit of  merits  having  been  filed  under  rule  36,  the  plaintiff  moved 
the  cases  out  of  their  order  at  the  March  Special  Term,  and  took 
judgment  by  default.  The  defendants  moved  to  open  the  defaults 
for  irregularity,  which  motion  was  denied.  These  appeals  are 
brought  from  the  order  of  denial. 

The  defaults  were  irregularly  taken. 

Affidavits  of  merits  to  prevent  inquests  under  rule  36  are  not 
applicable  to  actions  in  equity,  triable  by  the  court.  That  rule 
does  not  extend  inquests,  in  default  of  such  affidavits,  to  actions 
in  equity,  but  simply  provides  that  "  inquests  may  be  taken  in 
actions  out  of  their  order  on  the  calendar,  in  cases  in  which  they 
were  heretofore  allowed,  *  *  *  provided  a  sufficient  affidavit 
of  merits  shall  not  have  been  filed  and  served."  "  Inquests " 
were,  and  still  are,  in  use  only  in  actions  at  law.  They  were 
never  applied  to  suits  in  equity ;  but,  under  the  ninety-first  rule  of 
the  Court  of  Chancery,  mortgage  cases  of  the  fourth  class  were 


532  DEVLIN  v.  SHANNON. 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

entitled  to  a  preference  over  any  other  cases  of  that  class,  unless 
the  defendant,  before  the  case  was  heard,  filed  with  the  register  or 
clerk  an  affidavit  that  he  had  a  good  and  meritorious  defense,  and 
that  his  answer  was  not  put  in  for  the  purpose  of  delay ;  the  filing 
of  which  affidavit  must  have  been  noted  on  the  calendar.  The 
fourth  class  of  actions  were  those  to  be  heard  upon  pleadings,  or 
pleadings  and  proofs.  There  is  really  no  analogy  between  the  pro- 
ceeding provided  for  by  the  ninety -first  rule  of  chancery,  and 
inquests  regulated  by  the  thirty-sixth  rule  in  courts  at  law  ;  and 
it  seems  very  manifest  that  the  thirty-sixth  rule  has  not  preserved 
the  old  chancery  practice.  If  however  it  had,  that  proceeding 
was  not  taken  in  these  cases,  and  the  court,  and  counsel  for  the 
plaintiff,  appear  to  have  acted  solely  under  the  thirty-sixth  rule  of 
the  court.  (See  Barb.  Ch.  Pr.,  vol.  2,  p.  182,  note  24;  3  Wait's 
Pr.,  44,  45  ;  Van  Sant.  Pr.,  332.) 

The  plaintiff  did  not  move  upon  affidavits,  or  to  advance  the 
causes  for  trial,  on  the  ground  that  the  defenses  were  interposed 
for  delay  merely,  or  upon  any  other  equitable  ground.  The  action 
of  the  court  in  allowing  the  inquests  was  irregular,  and  the  defaults 
should  have  been  opened.  We  do  not  feel  at  liberty  to  try  the 
merits  of  the  cases  upon  affidavits  interposed  to  oppose  the  motion. 
To  do  so  is  merely  to  hear  one  side  upon  that  question ;  but  we 
are  strongly  impressed  with  the  idea  that  no  substantial  defenses 
exist.  The  appeals  are  properly  taken,  because  the  inquests  were 
irregular ;  and  it  was  a  matter  of  right  to  the  defendant  that  the 
defaults  should  be  opened. 

We  think,  however,  in  these  cases,  as  sales  have  taken  place,  and 
purchasers  have  entered  into  possession  and  made  repairs  and 
improvements,  the  better  course  is  to  open  the  defaults  so  far  as  to 
allow  the  trial  of  the  issues  at  Special  Term,  the  present  judgments 
to  stand,  and  the  question  whether  they  should  be  vacated  to 
depend  upon  the  result  of  such  trial. 

The  orders  below  should  be  reversed,  and  an  order  entered  to 
this  effect,  with  ten  dollars  costs  of  one  appeal  and  disbursements. 

DANIELS,  J.,  concurred ;  BBADT,  J.,  concurred  in  the  result. 

Orders  reversed  and  order  entered  according  to  opinion,  with 
ten  dollars  costs 


PEOPLE  u.  CONNER.  533 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 


THE  PEOPLE  EX  BEL.  LOUISA  DOUAI  WEHLE,  APPELLANT 
v.  WILLIAM  C.  CONNER  AND  OTHERS,  RESPONDENTS. 

Sheriff's  bond  —  action  upon  —  when  permitted  —  Statute — mandatory — permissive. 

The  provision  contained  in  section  3  of  title  5,  chapter  8,  part  3  of  the  Revised 
Statutes,  that  upon  due  proof  of  any  default  or  misconduct  of  the  sheriff  in  his 
office  "  the  court  shatt  order  "  his  official  bond  to  be  prosecuted,  is  not  mandatory 
but  permissive,  and  the  court  will  not  allow  such  action  to  be  brought  unless 
it  believes  it  to  be  just  and  proper  so  to  do. 

Where,  upon  an  appeal  to  the  Court  of  Appeals  from  a  judgment  of  the  General 
Term,  affirming  a  judgment  recovered  against  a  sheriff  for  a  failure  to  return 
an  execution  within  the  time  allowed  by  law,  the  sheriff  gives  the  bond  required 
by  the  Code  to  stay  all  proceedings  upon  the  judgment  pending  such  appeal,  the 
court  will  not  allow  an  action  to  be  brought  upon  the  official  bond  of  the 
sheriff  until  such  appeal  be  decided. 

APPEAL  from  an  order  vacating  an  order,  allowing  an  action  to  be 
brought  upon  the  official  bond  of  the  sheriff  of  the  city  and  county 
of  New  York,  for  a  failure  to  return  an  execution  within  the  time 
allowed  by  law. 

i 
Charles  Wehle,  for  the  appellant. 

If.  W.  Bookstaver,  for  the  respondents. 

DANIELS,  J. : 

It  appears  by  the  papers  before  this  court  on  the  present  appeal, 
that  the  relator,  as  plaintiff,  recovered  two  judgments  in  the 
Superior  Court  of  the  city  of  New  York,  on  which  executions 
were  issued  to  the  defendant  William  C.  Conner,  then  and  still  the 
sheriff  of  the  county  of  New  York.  The  sheriff  neglected  to 
return  the  executions  within  the  time  prescribed  by  law.  For  such 
default  an  action  was  commenced,  and  judgment  recovered  against 
him  for  the  amount  due  upon  the  executions.  He  appealed  to  the 
General  Term  of  the  Superior  Court,  where  the  judgment  was 
affirmed  ;  and  he  has  since  appealed  to  the  Court  of  Appeals,  giv- 
ing upon  that  appeal  the  undertaking  required  to  stay  proceeding! 
for  the  collection  of  the  judgments. 


534  PEOPLE  v.  CONNER 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

Upon  these  facts,  leave  to  sue  the  sheriff 's  bond  was  denied ; 
and  that  has  been  objected  to  as  erroneous,  because  of  the  direc- 
tion contained  in  the  statute,  that  upon  proof  of  his  default,  "  the 
court  shall  order  that  such  bond  be  prosecuted.''  But  while  the 
terms  used  in  the  statute  are,  in  form,  mandatory,  it  is  evident, 
from  the  fact,  that  an  action  cannot  be  maintained  without  leave 
of  the  court ;  that  they  were  not  designed  to  be  so  construed  and 
applied.  If  the  party  having  a  right  to  redress,  of  the  description 
mentioned  in  the  statute,  had  been  intended  to  be  invested  with 
an  absolute  and  unqualified  right  to  sue  the  bond,  no  precedent 
application  to  the  court  for  leave  to  do  so  would  have  been  rendered 
necessary,  as  it  has  been.  (3  K.  S.  [5th  ed.],  779,  §§  1,  3.) 

The  object  of  requiring  an  application  to  be  made  for  leave 
could  have  been  nothing  less  than  to  require  the  court,  before  it 
should  be  given,  to  make  such  an  investigation  into  the  case 
alleged  as  would  enable  it  to  determine  whether  the  suit  would 
be  just  and  proper.  The  power  to  give  the  leave  implied  the 
existence  of  authority  to  deny  it.  The  proceeding  provided  for 
was  evidently  intended  to  protect  the  sheriff  and  his  sureties 
against  needless  actions  ;  and,  at  the  same  time,  to  allow  all  such 
suits  upon  the  bond  as  should  appear  to  be  reasonably  necessary. 

By  the  judgment  recovered  in  the  action  against  the  sheriff,  a 
recovery  has  been  had  for  the  amount  he  has  become  liable  to  pay. 
And  that  has  been  so  far  secured,  in  the  manner  provided  for  by 
the  Code  of  Procedure,  as  to  stay  the  plaintiff's  proceedings  for 
its  collection  until  after  a  decision  shall  be  made  upon  the  sheriff's 
liability  by  the  Court  of  Appeals.  By  a  suit  upon  the  bond 
nothing  more  could,  for  the  present,  be  accomplished.  The  unset- 
tled point  of  actual  liability  would  still  be  an  open  subject  of  liti- 
gation, following  the  same  course  as  the  suit  against  the  sheriff 
alone.  It  would  be  unreasonable  and  oppressive  to  subject  him 
and  his  sureties  to  another  action,  which  would  necessarily  be 
attended  with  precisely  the  same  result  as  the  one  now  in  course 
of  prosecution.  And  it  would  violate  the  policy  and  spirit  of 
another  provision  of  the  statute,  in  terms  requiring  the  remedy  to 
be  exhausted  against  the  sheriff  before  redress  can  be  secured  from 
his  sureties.  (3  R.  S.  [5th  ed.],  781,  §  15.)  That  can  be  as  com- 
pletely done  in  the  action  now  pending  as  it  could  be  by  a  suit 


PEOPLE  v.  CONNER.  535 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

upon  the  bond  itself.  And  as  the  plaintiff  elected  to  pursue  that 
remedy,  it  is  no  more  than  just  that  its  final  result  shall  now 
become  known  before  leave  is  given  to  sue  the  bond.  If  the  judg- 
ment shall  be  affirmed,  the  plaintiff  will  be  very  likely  to  secure 
satisfaction  for  her  demand  by  means  of  the  undertaking  given 
upon  the  appeal  —  even  if  the  sheriff  shall  prove  to  be,  as  it  is  alleged 
he  is,  insolvent.  It  has  been  urged  that  the  sureties  in  that  under- 
taking are  not  of  sufficient  ability  to  pay  the  judgment  in  case  of 
its  affirmance.  But  as  they  justified  in  the  amount  required  to 
render  the  undertaking  effectual  as  a  stay,  there  seems  to  be  no  suf- 
ficient foundation  for  that  suspicion. 

The  proceeding  already  instituted  for  the  purpose  of  securing 
redress,  and  now  before  the  court  of  last  resort,  furnished  a  very 
good  reason  for  the  denial  of  the  application  made  to  sue  the  bond. 

Another  suit  for  the  same  end  cannot  be  necessary  until  a  final 
decision  shall  be  procured,  settling  the  rights  and  liabilities  of  the 
parties  upon  the  appeal  now  pending.  It  could  not  have  been 
designed  by  the  statute  that  needless  litigation  should  be  sanctioned 
and  directed  by  the  court.  And  that  would  surely  be  done  by 
allowing  the  bond  to  be,  at  this  time,  made  the  subject  of  an  action 
to  collect  the  money,  which  it  is  probable  will  be  secured  in  the 
suit  so  nearly  terminated. 

The  terms  of  the  statute,  though  in  form  mandatory,  must  have 
been  intended  to  invest  the  court  with  power  to  be  exercised  only 
as  it  should  be  required  to  promote  the  obvious  ends  of  justice;  and 
that  has  not  infrequently  been  held  to  be  the  case. 

Where  similar  language  has  been  used  by  the  legislature,  the 
word  "  may "  has  often  been  held  to  be  the  equivalent  of 
"  must "  or  "  shall,"  according  to  the  subject-matter  affected  by  the 
statute.  And  the  word  "  shall "  has  also  been  so  far  restrained  as  to 
result  in  the  creation  of  simply  a  discretionary  authority.  (Mal- 
com  v.  Rogers,  5  Cow.,  188 ;  Matter  of  Douglass,  58  Barb.,  174  ; 
In  re  N.  Y.  Prot.  Epis.  Public  Schools,  47  N.  Y.,  556 ;  Willetts 
v.  Ridgway,  9  Ind.,  367 ;  Wheeler  v.  City  of  Chicago,  24  111., 
105.)  And  by  subjecting  the  application  to  the  action  of  the 
court,  it  must  have  been  intended  that  the  term  should  be  under- 
stood as  controlled  by  a  like  restraint,  as  it  has  been  used  in  the 
statute  now  before  the  court. 


536       PEOPLE  v.  COMMISSIONERS  OF  TAXES,  ETC. 

FIBST  DEPARTMENT,  OCTOBER  TERM,  1876. 

It  has  been  further  urged,  in  support  of  the  appeal,  that  the  stat- 
ute declaring  that  for  any  violation  of  the  provision  directing  that 
the  sheriff  should  execute  and  return  process  delivered  to  him  etc., 
according  to  the  command  thereof,  he  shall  be  liable  to  an  action 
at  the  suit  of  the  aggrieved  party,  in  addition  to  any  other  fine, 
punishment  or  proceeding  authorized  by  law,  requires  the  applica- 
tion made  to  be  successful.  (3  R.  S.  [5th  ed.],  739,  §  98.)  But 
there  is  clearly  nothing  in  this  provision  which  would  render  the 
sheriff  liable  to  the  different  proceedings  mentioned  at  the  same 
time.  They  may  all  be  prosecuted  until  satisfaction  shall  be  finally 
successively  secured.  But  in  the  exercise  of  the  equitable  authority 
of  courts  of  justice,  they  should  not  all  be  allowed  to  be  carried 
on  at  the  same  time  when  it  is  highly  probable,  as  it  appears  to  be 
in  this  case,  that  the  one  first  instituted  will  result  in  satisfying 
the  entire  demand  of  the  party  entitled  to  redress. 

The  order  appealed  from  should  be  affirmed,  with  ten  dollars 
costs  and  the  disbursements  on  the  appeal. 

DAVIS,  P.  J.,  and  BBADY,  J.,  concurred. 

Order  affirmed,  with  ten  dollars  costs  and  disbursements. 


THE  PEOPLE  EX  BEL.  THE  GALLATIN  NATIONAL 
BANK,  FREDERICK  D.  TAPPAN  AND  OTHERS,  v.  THE 
COMMISSIONERS  OF  TAXES  AND  ASSESSMENTS 
OF  THE  CITY  OF  NEW  YORK,  DEFENDANT.* 

National  bank —  Taxation — Actual,  not  par  value  of  stock,  the  basis  of — Surplus, 

The  actual  and  not  the  par  value  is  the  standard  to  be  adopted  by  commissioners 

of  taxation,  in  assessing  the  value  of  shares  of  the  capital  stock  of  a  national 

bank 
Such  valuation  is  not  affected  by  the  fact  that  a  portion  of  the  capital  of  the  bank 

is  invested  hi  United  States  bonds,  or  by  the  fact  that  the  bank  is  required  by 

law  to  accumulate  and  retain  a  reserve. 

*  Decided  November  15, 1876. 


PEOPLE  v.  COMMISSIONERS  OF  TA3LES,  ETC.       587 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

The  actual  value  of  the  stock,  diminished  by  the  proportionate  value  of  the  real 
estate  owned  by  the  bank,  furnishes  the  proper  sum  upon  which  to  assess 
the  tax. 

WRIT  of  certiorari  to  inquire  into  the  validity  of  a  tax  imposed 
on  shares  of  the  Gallatin  National  Bank. 

The  Gallatin  Bank  is  a  national  banking  association  organized  in 
conformity  with  the  act  of  congress  passed  3d  June,  1864,  and 
pursuant  to  an  act  of  the  legislature  of  this  State  passed  9th  March, 
1865.  (Chap.  97.) 

The  bank  had  been  previously  organized  under  the  general  bank- 
ing law  of  this  State,  but  on  reorganization  it  surrendered  its 
charter  as  required  by  the  enabling  act,  and  in  conformity  with 
section  16  of  the  act  of  congress  it  at  once  invested  one-third  of  its 
capital  in  government  bonds ;  and  in  conformity  with  section  33  it 
has  reserved  from  its  earnings  an  accumulated  surplus  of  $300,000. 

The  bank's  assets  were  as  follows  : 

Capital $1,500,000 

Surplus 300,000 

Premium  on  $591,000  United  States  bonds,  over  20 

per  cent 118,200 

$1,918,200 


This  amount  divided  among  the  stockholders  would  give,  per 
each  share,  sixty-three  dollars  and  thirty  cents.  They  were  assessed 
by  the  commissioners  at  fifty-nine  dollars  each.  The  assessed  value 
of  the  real  estate  of  the  bank  was  $50,000.  The  par  value  of  each' 
share,  fifty  dollars. 

The  commissioners  of  taxes,  in  determining  the  tax  to  be 
imposed,  included  in  the  estimate  of  value  the  surplus  and  the 
reserve,  deducting  the  assessed  value  of  the  relator's  real  estate. 
The  president  of  the  bank  objected  and  offered  proof  of  the  above 
facts.  The  commissioners,  notwithstanding,  made  the  assessment 
which  the  relator  now  seeks  to  have  corrected. 

D.  D.  Lord,  for  the  relators.     The  assessment  violates  the  clauses 

in  the  act  of  congress,  3d  June,  1864,  and  in  the  State  enabling 

act  of  9th  March,  1865,  prohibiting  an  unfavorable  discrimination 

against  national  banks.     The  intention  of  these  clauses  was  not 

HUN— VOL.  VIII.         68 


538       PEOPLE  v.  COMMISSIONERS  OF  TAXES,  ETC. 
FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

limited  merely  to  requiring  that  the  taxes  should  be  at  the  same 
per  centage  for  both  kinds  of  banks,  but  that  no  unfair  discrimina- 
tion should  be  made  against  the  national  banks,  whether  in  the 
rate  of  tax,  assessment  of  taxable  value,  or  otherwise.  (Austin  v. 
Barton,  14  Allen,  365.)  This  prohibition  is  violated  even  when 
one  uniform  rate  of  taxation  is  applied  to  both  classes  of  banks,  if 
their  constitutions  are  so  different  that  it  acts  favorably  on  one 
class  and  unfavorably  on  the  other.  Such  a  rule,  though  literally 
uniform,  might  drive  the  national  banks  out  of  existence  as  effectu- 
ally as  an  unequal  assessment  of  the  taxable  value,  or  an  unequal 
per  centage  of  tax  imposed.  In  the  present  case  the  rule  men- 
tioned is  very  unequal  and  injurious  to  the  relators.  The  surplus 
and  the  premium  on  government  bonds  are  included  in  the  assessed 
value  of  the  shares.  They  enter  into  the  limit  of  value,  stated  by 
Mr.  Tappau,  which  it  appears  by  the  return  formed  the  basis  of  ihe 
assessment  made  by  the  commissioners.  The  retention  of  these 
bonds  as  well  as  of  the  surplus  is  not,  by  the  voluntary  actiou  of 
the  bank,  for  its  own  profit.  So  far  as  relates  to  the  bonds  the 
bank's  interest  would  be  promoted  by  selling  them,  and  the  surplus 
also  might  advantageously  be  divided  amongst  the  shareholders. 
The  bank  is  compelled  to  retain  them  from  motives  of  public  policy. 
As  the  State  banks  are  not  under  a  similar  obligation,  the  rule 
adopted  by  the  commissioners  compels  shareholders  in  national 
banks  to  pay  on  a  surplus,  while  the  shares  in  the  State  banks  are  not 
taxable  above  the  par  value,  except  at  the  election  of  their  owners. 

Hugh  L.  Cole,  for  the  respondents.  The  actual  value  and  not 
the  par  value,  where  the  two  do  not  coincide,  is  the  stand&rd  to  be 
adopted  by  the  commissioners  in  assessing  the  value  of  shares  of 
the  capital  stock  of  a  national  bank  upon  the  stockholders  thereof. 
(Chap.  761  of  the  Laws  of  1866 ;  People  v.  The  Assessors  of 
Albany  City,  2  Hun,  583  [1874]  ;  Hepburn  v.  The  School  Directors 
of  the  Borough  of  Carlisle,  Pennsylvania,  23  Wall.,  480  [1875].) 
The  stockholders  cannot  avoid  taxation  on  the  actual  value  of  their 
stock  by  the  fact  that  a  part,  or  even  the  whole,  of  the  capital  stock 
of  the  bank  was  invested  in  United  States  bonds.  (  Van  Allen  v. 
The  Assessors,  3  Wall.,  573  ;  The  People  v  The  Commissioners > 
4  id.,  244.) 


PEOPLE  v.  COMMISSIONERS  OF  TAXES,  ETC.       539 


BBADT,  J. : 

The  actual  value  of  the  shares  of  the  relators'  stock  is  the  propel 
standard  in  assessing  the  tax  to  be  paid. 

The  par  value  does  not  control.  (Laws  1866,  chap.  761,  vol.  2, 
page  1647 ;  1  Rev.  Stat.,  393,  §  17.)  It  was  the  duty  therefore  of 
the  respondents  to  ascertain  and  act  upon  the  true  value  of  the 
stock  as  they  have  done.  (People  v.  The  Assessors  of  Albany 
City,  2  Hun,  583.)  The  provision,  that  the  tax  so  assessed  shall 
not  exceed  the  par  value,  in  the  enabling  act  of  congress  of  9th 
March,  1865,  does  not  affect  this  principle.  The  impost  may  be 
upon  a  sum  exceeding  the  par  value  when  that  sum  represents  the 
actual  value  of  the  share. 

The  precise  question  is  settled  by  the  highest  authority.  (Hep- 
burn v.  The  School  Directors  of  the  Borough  of  Carlisle,  Penn., 
23  Wall.,  480.)  The  only  restriction  is,  that  the  share  shall  not  be 
taxed  at  a  greater  rate  than  is  imposed  upon  other  moneyed  capital 
in  the  hands  of  individuals  of  this  State.  This  limitation  is  not 
affected  by  the  fact  that  a  part  of  the  capital  stock  of  the  bank 
is  invested  in  bonds  of  the  United  States  ( Van  Allen  v.  The 
Assessors,  3  Wall.,  573 ;  The  People  v.  The  Commissioners,  4  id., 
244),  or  by  the  fact  that  the  bank  is  obliged  by  law  to  accumulate 
a  reserve.  The  respondents,  in  determining  the  tax  to  be  imposed, 
adopted  a  standard  of  value  founded  upon  the  statement  of  the 
relators'  president,  and  ascertained  by  deducting  from  such  value 
the  proportionate  share  of  the  assessed  value  of  the  relators'  real 
estate.  The  reserve,  which  is  a  part  of  the  capital  of  the  bank  and 
the  surplus  as  well,  were  properly  included  in  the  estimate  of  value. 
Both  contribute  to  the  value  of  the  shares,  and  are  necessarily, 
therefore,  constituent  elements  of  such  value.  The  interest  of  the 
shareholder  entitles  him  to  participate  in  the  net  profits  earned  by 
the  bank  in  the  employment  of  its  capital,  during  the  existence  of 
its  charter,  in  proportion  to  the  number  of  his  shares ;  and  upon 
its  dissolution,  or  termination,  to  his  proportion  of  the  property 
*hat  may  remain  of  the  corporation  after  the  payment  of  its  debts. 
This  is  a  distinct,  independent  interest  or  property  held  by  the 
ehareholder,  like  any  other  property  that  may  belong  to  him,  and, 
we  add,  of  course  subject  to  taxation.  (Per  NELSON,  J.,  in  cases 
.;.  3  and  4  Wall.,  supra.)  It  is  quite  apparent  from  these  adjudi- 


540       PEOPLE  v.  COMMISSIONERS  OF  TAXES,  ETC. 
FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

cations  and  the  principles  enunciated  by  them  that  the  respondents 
have  acted  properly,  and  that  the  writ  must  be  dismissed  with 
costs. 

Present — DAVIB,  P.  J.,  BRADV  and  DANIELS,  JJ. 
Writ  dismissed. 


MEMORANDA 


OF 


ELIZABETH  DUSENBURY  AND  MARY  M.  DE  GUERRE, 
RESPONDENTS,  v.  PATRICK  OALLAGHAN,  IMPLEADED  WITH 
OTHEB8,  APPELLANT. 

Fraudulent  foreclosure — Action  to  recover  damages  against  fraudulent  purchaser  at 
tale — Release  by  plaintiff  of  all  interest  in  property  to  person  acquiring  title  from 
such  purchaser — No  defense  to  action  —  Payment  —  when  third  person  relieved 
from  liability  by  —  Covenants  of  seizin  and  warranty  —  breach  of. 

APPEAL  by  the  defendant  Patrick  Callaghan,  from  an  order 
denying  a  motion  for  leave  to  file  and  serve  a  supplemental  answer 
in  this  action,  setting  up  as  new  matter : 

First.  A  conveyance  of  the  property  and  premises  in  question 
by  the  defendants  Lehmaier  and  wife  to  Jonathan  Hanson  and 
Jonathan  Hanson,  Jr.,  dated  on  or  about  December  16,  1872,  and 
recorded  on  or  about  January  4,  1873. 

Second.  A  conveyance  of  the  property  and  premises  in  question 
by  Jonathan  Hanson  and  wife,  and  Jonathan  Hanson,  Jr.,  and 
wife,  to  Thomas  Handibode,  dated  on  or  about  March  8,  1873,  and 
recorded  on  or  about  March  14,  1873. 

Third.  A  deed  of  release  of  the  property  and  premises  in  ques- 
tion from  the  plaintiffs  and  their  mother,  the  widow  of  William 
A.  De  Guerre,  deceased,  to  Thomas  Handibode,  dated  on  or  about 
April  19,  1873,  and  recorded  April  21,  1873. 

Fourth.  The  consideration  paid  by  said  Handibode  for  such 
deed  of  release,  and  the  amount  thereof,  or  for  such  other  or 
further  relief  in  the  premises  as  may  be  just  and  equitable. 

Also  an  appeal  from  a  judgment  for  $12,964.03  in  favor  of  the 
plaintiff  against  the  defendant  Callaghan. 


542  DUSENBURY  ».  CALLAGHAN. 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

The  action  itself  was  originally  brought  by  the  plaintiffs,  who 
are  the  daughters  of  W.  A.  DeGuerre,  deceased,  to  redeem  the 
premises  on  the  south-west  corner  of  Third  avenue  and  One  Hun- 
dred and  Twenty-seventh  street,  fifty  feet  on  Third  avenue  and  o..e 
hundred  feet  on  One  Hundred  and  Twenty-seventh  street,  from 
the  foreclosure  of  a  mortgage  of  $1,000,  and  a  sale  thereunder, 
which  mortgage  was  foreclosed  by  and  under  the  direction  of  the 
defendant  Callaghan  ;  and  also  to  charge  the  defendant  Callaghan, 
as  an  equitable  and  constructive  trustee,  for  the  value  of  the  said 
premises,  less  what  he  had  paid  thereon,  on  the  ground  that  he 
had  conspired  and  colluded  with  their  attorney  and  guardian  ad 
litem  to  defraud  them,  by  controlling  the  foreclosure,  and  drafting 
and  arranging  the  terms  of  sale  so  as  to  destroy  all  competition, 
thereby  purchasing  and  bidding  in  the  property  himself,  at  the 
foreclosure  sale,  for  $3,100,  while  the  real  value  of  the  same  was 
$12,000. 

Stead  and  Lehmaier  were  made  defendants,  as  subsequent  grantees 
of  Callaghan,  and  the  Equitable  Life  Assurance  Society,  as  a  sub- 
sequent mortgagee  for  $15,000. 

After  the  commencement  of  this  action  against  the  other  defend- 
ants, the  plaintiffs  became  convinced  that  they  should  not  be 
able  to  bring  notice  home  to  such  defendants  of  the  fraudulent 
acts  of  the  defendant  Callaghan,  and  they  abandoned  that  portion 
of  their  claim  for  relief,  which  included  the  right  to  redeem,  and 
prosecuted  this  action  solely  against  the  defendant  Callaghanr 
claiming  to  charge  him,  as  a  constructive  trustee,  for  the  fraud 
alleged  in  the  complaint,  and  subsequently  proved  on  the  trial, 
which  occurred  only  the  week  after  the  decision  of  this  motion, 
from  which  an  appeal  is  here  taken. 

The  defendant  Callaghan  moved  to  set  up  by  supplemental 
answer  that  the  plaintiffs  had,  after  the  commencement  of  the 
action,  released  to  one  Handibode,  a  grantee  of  the  property 
from  the  Hansons,  to  whom  defendants  had  conveyed,  with 
convenants  of  seizin  and  warranty,  all  their  interest  in  the  prem- 
ises, for  the  sum  of  $3,000;  the  deed  providing  that  such  release 
should  not  in  any  way  be  construed  as  affecting  the  personal 
claim  of  the  plaintiffs  and  their  mother  against  defendant  Calia 
ghan,  personally,  as  the  same  was  set  forth  in  the  complaint  here;-: 


DUSENBURY  v.  CALLAGHA^.         548 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

The  motion  was  denied,  on  the  ground  that  the  release  was  no 
defense  to  the  defendant  in  this  action. 

The  court  at  General  Term  say :  "  It  appeared  upon  the  trial 
that  the  plaintiffs  and  their  mother  received  $3,000,  jointly,  from 
the  holder  of  the  paper  title,  which  was  paid  to  them  for  a  release 
to  him  of  all  interest  in  the  land. 

This  payment  and  the  instrument  obtained  by  it  removed  a 
cloud  upon  his  title  arising  from  assumed  errors  or  irregularities  in 
the  foreclosure  proceedings,  and  prevented  the  plaintiffs  from 
asserting  any  claim  to  the  land.  The  defendant,  prior  to  the  trial, 
sought  to  set  up  this  fact  by  supplemental  answer,  but  the  motion 
made  for  that  purpose  was  denied,  upon  the  ground  that  it  consti- 
tuted no  defense.  The  defendant  complains  of  this  decision,  and 
from  the  order  made  has  appealed,  as  already  suggested. 

The  release  which  the  defendant  sought  to  interpose  was  given 
to  the  holder  of  the  title  without  any  concert  of  action  between 
him  and  the  defendant.  It  was  procured,  doubtless,  to  set  at  rest 
all  questions  about  the  title ;  and  obtaining  it  prevented  an  evic- 
tion by  the  plaintiffs,  or  surrender  to  them  for  paramount  title,  or 
any  assault  upon  the  title  by  them.  The  quasi  owner  bought  hie 
peace,  in  other  words.  He  had  no  remedy  against  the  defendant 
on  the  covenant  of  seizin,  for  his  grant  was  not  from  him. 

The  defendant's  covenant  was  broken,  if  at  all,  as  soon  as  the 
deed  from  him  was  delivered ;  and  being  then  converted  into  a 
chose  in  action,  did  not  run  with  the  land  or  pass  by  the  convey- 
ance of  his  grantee.  (4  Kent  [llth  ed.],  p.  555  ;  Blydenburgh  v. 
Cotheal,  1  Duer,  197,  and  numerous  cases  cited  ;  Bmgham,  Admr., 
v.  Weiderwax  et  aL,  1  Comst.,  509  ;  Mott  v.  Palmer,  id.,  564.) 

He  could  have  no  remedy  on  the  warranty,  because  he  prevented 
by  friendly  compromise  any  eviction  or  obligation  to  surrender  the 
premises  to  the  plaintiffs  under  their  claim  of  title.     (Ingersoll  v 
Ball,  30  Barb.,  392.) 

No  action  could  be  maintained  without  one  of  these  elements, 
(Oreenvault  v.  Davis,  4  Hill,  643 ;  Fowler  v.  Poling,  6  Barb., 
165 ;  Blydenburgh  v.  Cotheal,  1  Duer,  176,  196,  and  cases  cited ; 
BeOdoe  v.  Wadsworth,  21  Wend.,  120.)  The  result  was  that  what- 
ever privity  existed  between  him  and  the  defendant  was,  in  effect, 
extinguished,  because  it  was  created  only  by  the  covenant  of  war 


544         DUSENBURY  v.  CALLAGHAN. 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

ranty  running  with  the  land,  and  which  was  ineffective  because  the 
necessary  conditions  to  its  enforcement  could  not  arise  upon  any 
claim  of  the  plaintiffs.  The  money  paid  could  not  be  regarded, 
therefore,  as  paid  in  his  interest  or  for  his  benefit,  for  aught  that 
appears  in  the  case. 

The  holder  of  the  title  was  a  stranger,  paying  the  money  for  a 
specific  purpose,  and  not  with  any  intention  to  relieve  the  defend- 
ant from  any  liability  which  he  might  have  incurred.  To  be 
effectual,  payment,  if  by  a  third  person,  must  be  made  by  him  as 
agent  for  or  on  account  of  the  one  liable,  and  with  the  prior 
authority  or  subsequent  ratification  of  the  latter.  (Atlantic  Dock 
Co.  v.  The  Mayor,  53  N.  Y.,  64,  and  cases  cited.)  The  only  advan- 
tage to  grow  out  of  the  recovery  in  this  case,  on  the  assumption 
that  it  affords  complete  indemnity,  would  be  a  probable  right  in 
the  payor  to  recover  back  the  money  he  paid,  as  suggested  in 
Bleakley  v.  White  (4  Paige,  654).  The  justice  was  right,  therefore, 
in  denying  the  motion  for  leave  to  file  a  supplemental  answer.  We 
think  it  also  proper  to  say  that  the  mother  of  the  plaintiffs,  having 
a  dower  right  in  the  property,  and  having  reserved  any  right  of 
action  against  the  defendant  Callaghan  by  the  terms  of  the  release 
mentioned,  the  plaintiff  could  not  recover  the  whole  value  of  the 
property  in  excess  of  what  was  paid  by  the  defendant  when  he  took 
the  title,  inasmuch  as  she  had  not  joined  in  the  action. 

This  will  not,  however,  prevent  them  from  recovering  their  indi- 
vidual claims  when  established.  Whether  this  defect  can  be  cured 
by  amendment  or  release  it  is  not  our  province  now  to  declare." 

The  judgment  was  reversed,  however,  because  of  the  judge  at 
Special  Term  having,  through  an  erroneous  impression,  discredited 
the  statements  of  two  witnesses. 

J.  S.  Bosworth,  for  the  appellant.  D.  MoMahon  and  Samuel 
A.  Noyes,  for  the  respondents. 

Opinion  by  BRADY,  J.  ;  DAVIS,  P.  J.,  and  DANIELS,  J.,  con- 
curred. 

Judgment  reversed,  new  trial  ordered,  with  costs  to  abide  event  •, 
order  appealed  from  affirmed,  with  costs. 


BRADLEY  v.   McLAUGHLIN.  545 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 


EDWARD  BRADLEY,  APPELLANT,  v.  SAMUEL  MoLAUGH- 
LIN,  RESPONDENT. 

Referee  —  report  of,  on  conflicting  evidence —  Findings  that  evidence  "  leaves  the  mind 
in  doubt "  —  error  —  Mistrial. 

APPEAL  from  a  judgment  in  favor  of  the  defendant,  entered 
upon  the  report  of  a  referee.  This  action  was  brought  to  recover 
the  value  of  professional  services  alleged  to  have  been  rendered  by 
the  plaintiff,  a  physician,  for  the  defendant  and  one  of  his  grand- 
children. The  referee,  after  finding  that  the  plaintiff  was  a  licensed 
and  practicing  physician,  as  alleged  in  the  complaint,  reported 
that,  as  to  the  other  matters  alleged  in  the  complaint,  he  finds  that 
the  evidence  leaves  the  mind  in  doubt  as  to  whether  services 
referred  to  therein  were  or  were  not  rendered  for  the  defendant,  or 
at  his  instance  and  request,  or  that  the  defendant  promised  to  pay 
for  the  same ;  and,  therefore,  as  to  these  matters,  he  finds  that  the 
plaintiff  failed  sufficently  to  prove  the  same.  And,  for  a  like 
reason,  he  finds  that  the  evidence  leaves  the  mind  in  doubt  as  to 
the  matters  alleged  by  way  of  counter-claim  in  the  second  branch 
of  defendant's  answer,  and  therefore  defendant  has  failed  to  suf- 
ficiently prove  the  same. 

As  matters  of  law,  from  the  foregoing  finding,  the  referee  finds 
and  decides  that  judgment  must  be  given  in  favor  of  the  defend- 
ant against  the  plaintiff  for  the  dismissal  of  said  plaintiff's 
complaint. 

The  court  at  General  Term  say :  "As  the  referee  sat  in  the 
capacity  of  both  judge  and  jury,  his  decision  may  be  regarded  as 
in  the  nature  of  a  nonsuit  of  plaintiff,  and,  in  that  view,  could 
not,  perhaps,  be  objectionable  in  point  of  form,  if  rendered  in  a 
proper  case.  The  course  of  the  referee  in  that  aspect  is  not  one  to 
be  commended,  however,  because  it  is  not  safe  for  imitation,  and 
is  likely  to  lead  to  injustice.  It  devolves  upon  the  court  the  duty 
to  inquire  whether  there  was  not,  as  to  some  one  or  more  of  the 
allegations  of  the  complaint,  evidence  which  required  the  referee 
to  pass  upon  the  questions  of  fact  by  a  finding  of  the  facts •,  one 
way  or  the  other. 

HUN— VOL.  VIII         69 


546  BRADLEY  v.  McLAUGHLIN. 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

On  looking  into  the  case,  we  find  that  there  was  no  failure  on 
the  part  of  the  plaintiff  to  give  evidence  to  support  all  of  the 
allegations  of  his  complaint.  On  the  contrary,  he  made  out,  on 
his  part,  a  clear  and  satisfactory  case  by  his  own  testimony,  on 
which,  with  the  corroborating  proof,  he  was  entitled,  beyond 
doubt,  to  findings  and  judgment  in  his  favor;  but  the  defendant 
came  in  with  flat  denials  of  every  thing,  by  his  own  testimony, 
thus  producing  a  plain  conflict  of  evidence  (or  at  least  of  test! 
mony),  as  to  the  facts  alleged.  If  the  case  had  been  before  a  court 
and  jury,  there  can  be  no  doubt  as  to  the  course  that  must  have 
been  taken.  The  court  must  have  sent  the  case  to  the  jury  to  find 
the  facts  upon  which  the  decision  would  depend ;  and  it  would 
have  been  palpable  error  for  the  court  to  have  nonsuited  the  plain 
tiff,  because  the  jury  could  not  agree  as  to  the  facts.  Nor  could 
the  court  have  taken  the  case  from  the  jury  "  because  the  evidence 
leaves  the  mind  in  doubt."  The  question  had  become  one  of 
credibility  upon  conflicting  testimony,  and  had  thus  passed  beyond 
the  control  of  the  court.  The  case  could  not  be  disposed  of  until 
the  jury  had  settled  the  conflict  by  a  finding  of  fact,  one  way  or 
the  other.  So,  it  seems  to  us,  that  where  there  is  an  abundance  of 
evidence  before  a  referee  to  support  the  allegations  of  either  side, 
and  the  only  question  is  to  which  side  he  shall  give  credit,  it  is  his 
duty  to  pass  upon  the  facts,  and  find  in  one  direction  or  the  other, 
and  not  say,  as  in  this  case,  the  conflicting  evidence  "  leaves  the 
mind  in  doubt ; "  and,  therefore,  I  dismiss  the  complaint,  because 
of  my  inability  to  solve  the  doubt.  Before  a  jury,  such  a  conflict 
is  easily  disposed  of  by  a  verdict  against  the  party  holding  the 
affirmative;  and  that  is  a  short  mode  of  finding  the  facts.  But 
before  a  referee  under  the  Code,  a  more  formal  mode  of  finding  the 
facts,  by  a  report  in  writing,  is  requisite  ;  and  it  follows  that  in  cases 
where  conflicting  evidence  leaves  the  mind  in  doubt,  it  is  the  duty 
of  the  referee  to  find  the  facts  adversely  to  the  party  holding  the 
affirmative,  and  not  to  send  up  to  the  court  a  report  of  his  inabil- 
ity to  find  them.  We  are  therefore  of  opinion  that  the  report  of 
the  referee  is  an  improper  and  insufficient  one,  under  the  facts  and 
circumstances  of  this  case;  and,  as  proper  exceptions  were  taken 
we  think  the  case  ought  to  go  back  for  a  new  trial  on  the  ground 
of  mistrial ;  for  the  same  reason,  in  substance,  as  a  case  stand* 


MARCKWALD  v.  OCEANIC  STEAM  NAV.  CO.      547 

FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

for  retrial  where  a  jury  fail  to  agree  because  of  conflicting  evi 
dence." 

JE.   T.  £ell9  for  the  appellant.     Briggs  db  Fellows,  for  th« 
respondent. 

Opinion  by  DAVIS,  P.  J. ;  DANIELS,  J.,  concurred. 
Judgment  reversed  ;  new  trial  ordered ;  costs  to  abide  event. 


FREEMAN  D.  MARCKWALD,  PLAINTIFF,  v.  THE  OCEANIC 
STEAM  NAVIGATION  COMPANY  (LIMITED),  DEFENDANT. 

Bill  of  exceptions  —  Settlement  of  case  presenting  only  questions  of  law  —  insertion  <j 
all  the  evidence  in,  not  proper — Statement  of  facts  established  by  the  evidence  —  «u&- 
ttitutedfor  the  evidence,  when. 

APPEAL  from  an  order  denying  a  motion  for  the  resettlement  of 
a  case  containing  exceptions.  The  motion  was  made  on  the  ground 
that  a  bill  of  exceptions  should  contain  only  so  much  of  the  evi- 
dence as  should  be  necessary  to  present  the  questions  of  law  raised 
on  the  trial. 

The  question  presented  related  to  the  insertion  of  certain  depo- 
sitions and  the  stenographic  notes  of  the  testimony  of  a  witness,  in 
the  case. 

The  court  at  General  Term,  after  deciding  that  their  insertion  was 
unnecessary,  further  say  :  "  The  practice  of  inserting  the  evidence 
at  large  in  cases  presenting  only  questions  of  law  is  not  to  be  com- 
mended ;  the  parties,  their  counsel  and  the  court  are  all  interested 
in  securing  its  discontinuance.  It  imposes  unnecessary  expense 
upon  the  parties  and  at  the  same  time  complicates  their  controver- 
sies. In  many  cases  the  needless  cost  of  procuring  full  notes  of 
the  evidence,  and  afterwards  printing  them  for  the  counsel  and 
the  court,  will  equal  or  exceed  all  the  other  expenses  of  the  litiga- 
tion. What  would  more  than  compensate  counsel  for  putting  the 
case  in  a  concise  and  convenient  form  has  to  be  paid  for  writing 
out  the  notes  or  printing  the  papers,  and  that  too  without  dispens 


548      MARCKWALD  v.  OCEANIC  STEAM  NAV.  CO. 
Fniflx  DKPAKTMKNT,  OCTOBER  TERM,  1876. 

ing  with  this  labor ;  for  that  which  should  be  done  when  the  case 
is  made  and  settled,  must  afterwards  be  carefully  performed  if  the 
briefs  for  the  argument  are  properly  made  out.  The  labor  in  the 
end  is  not  dispensed  with,  but  its  performance  is  required  after 
the  recollections  of  the  trial  and  the  points  reserved  have  become 
obscured,  and  all  must  be  learned  over  again. 

A  presentation  of  all  the  evidence  renders  it  much  more  laborious 
for  the  court  to  ascertain  and  determine  the  points  involved.  They 
are  confused  and  concealed  by  it,  and  in  some  instances,  certainly, 
imperfectly  considered,  by  reason  of  the  difficulty  experienced  in 
gathering  what  may  be  the  relevant  and  important  evidence  for  that 
purpose.  It  not  unfrequently  happens  that  in  a  case  of  100  pages 
all  the  material  evidence  could  be  well  contained  in  less  than  half 
a  dozen.  Much  time  is  lost  and  great  labor  is  bestowed,  in  sifting 
that  which  is  serviceable  from  the  great  mass  of  what  is  worse  than 
useless  in  the  case.  That  time  should  be  devoted  to  the  considera- 
tion of  the  points  perspicuously  presented  by  the  facts,  or  by  only 
so  much  of  the  evidence  as  may  be  required  to  develop  them, 
instead  of  being  wasted  upon  a  service  that  is  beneficial  to  no  one. 
The  idea  that  it  can  do  no  harm  to  make  papers  unnecessarily 
voluminous  has  arisen  out  of  a  misapprehension  of  the  fact.  It  is 
often  a  positive  injury  to  the  parties,  for  it  deprives  the  courts  of 
the  ability  to  give  the  real  controversy  the  attention  it  is  often 
found  to  require,  and  which  the  pressure  of  other  official  duties 
often  precludes  it  from  receiving.  The  practice  in  this  respect  can- 
not be  too  soon  corrected,  and  the  defendant's  motion  for  a  reset- 
tlement of  the  case  was  a  step  in  that  direction.  (Dunla/p  v. 
Hawkms,  2  N.  Y.  S.  C.  [T.  &  0.],  292,  298,  299 ;  Rowland  v. 
Woodruff,  60  N.  Y.,  73.)  *  *  * 

It  has  been  objected  that  the  order  made  is  not  appealable  ; 
but  the  addition  of  the  evidence  secured  by  the  depositions  and  the 
detailed  examination  of  the  witness  Pennell,  would  very  materially 
increase  the  expenditures  required  to  be  made  to  bring  the  case 
before  the  court.  And  as  that  would  have  to  be  borne  by  the 
defendant,  in  order  to  secure  a  hearing  of  the  exceptions,  it  ren- 
dered the  order  appealable,  even  though  discretion  was  to  a  certain 
extent  involved  in  making  it.  (People  v.  New  York  Central  S. 
R.  Co.,  29  N.  Y.,  418 ;  Matter  of  Duff,  41  How.,  350.) 


MARCKWALD  v.  OCEANIC  STEAM  NAV.  CO.       549 
FIRST  DEPARTMENT,  OCTOBER  TERM,  1876. 

The  order  appealed  from  should  be  reversed,  but  without  costs, 
and  an  order  entered  directing  a  resettlement  of  the  case,  by 
excluding  from  it  the  depositions  and  the  stenographic  notes  of 
the  witness  Pennell,  and  substituting  in  place  thereof,  so  far  as 
that  may  be  proper,  a  statement  of  the  facts  which  such  evidence 
proved,  or  tended  to  prove,  upon  the  trial." 

William  A.  Coursen,  for  the  plaintiff.  Everett  P.  Wheeler,  for 
the  defendant. 

Opinion  by  DANIELS,  J. ;  DAVIS,  P.  J.,  concurred ;  BRADT,  J., 
concurred  in  the  result,  on  the  strength  of  rule  43. 

Order  reversed  without  costs  ;  order  entered  as  in  opinion. 


DETERMINED   IN  TUB 


FOURTH  DEPARTMENT 

GENERAL   TERM, 
f,  1876. 


HORACE  J.  THAYER,  RESPONDENT,  v.  SIMON  B.  MANLEY, 

APPELLANT. 

Fraudulent  representations  —  Pi'omis&o-fy  notes  —  obtained  by  —  Measure  of  dam- 
ages—  wTiere  notes  are  not  transferred  before  maturity. 

Upon  the  trial  of  an  action  brought  by  the  plaintiff  to  recover  damages  for  fraud- 
ulent representations,  by  means  of  which  he  was  induced  to  deliver  to  the 
defendant  his  three  promissory  notes,  each  for  $500,  with  interest,  it  appeared 
that  all  the  notes  were  still  in  the  possession  of  the  defendant,  and  that  one  of 
them  was  then  overdue.  The  court  charged  that  the  plaintiff  was  entitled  to 
recover  the  face  of  the  notes,  with  interest.  Upon  appeal  from  a  judgment  in 
favor  of  the  plaintiff,  Jteld,  that  this  was  error  ;  that  the  verdict  of  the  jury 
established  the  invalidity  of  the  notes  in  the  hands  of  the  defendant;  and  that, 
as  to  the  note  then  overdue,  the  plaintiff  was  only  entitled  to  nominal  damages; 
that  he  was  entitled  to  recover  the  face  of  the  other  two,  with  interest,  as  they 
might  be  transferred  before  maturity  to  bona  fide  purchasers  in  good  faith. 

Held,  further,  that  if  the  defendant  had  canceled  or  surrendered  the  other  notes 
at  the  trial,  plaintiff  could  only  have  recovered  nominal  damages  for  them  also. 

APPEAL  from  an  order  denying  a  motion  for  a  new  trial,  made 
upon  a  case  and  exceptions,  after  a  verdict  and  judgment  in  fa^or 
vf  the  plaintiff. 

Sherman  S.  Rogers,  for  the  appellant. 
C.  D.  Murray ,  for  the  respondent. 


THAYER  v.  MANLEY.  551 

FOURTH  DEPARTMENT,  OCTOBER  TERM,  1876. 

TALCOTT,  J. : 

This  action  is  brought  by  the  plaintiff  to  recover  damages  for 
certain  false  and  fraudulent  representations,  by  means  of  which  the 
defendant  procured  the  plaintiff  to  execute  and  deliver  to  him  (the 
defendant)  three  promissory  notes  for  $500  each,  payable  to  the 
defendant  or  bearer,  with  interest,  at  two,  three,  and  four  years 
from  date  respectively. 

The  notes  were  all  dated  on  the  8th  day  of  October,  18T2.  The 
suit  was  commenced  in  the  month  of  August,  1874,  and  was  tried  in 
January,  1875.  The  defendant  continued  to  be  the  holder  of  the 
three  notes  at  the  time  of  the  trial,  and  produced  them  on  the  trial ; 
but,  so  far  as  the  case  shows,  did  not  cancel  them  or  any  of  them, 
and  did  not  deliver  or  offer  to  deliver  them  to  the  plaintiff.  In 
fact,  the  defendant  was  placed  in  an  embarrassing  position  in  refer- 
ence to  the  cancellation  or  return  of  the  notes.  He  contended 
before  the  jury,  and  gave  evidence,  as  the  case  states,  tending  to 
disprove  the  allegations  of  the  complaint,  and  it  could  only  be 
known  after  the  verdict  was  found,  whether  the  jury  would  sus- 
tain the  claims  of  the  plaintiff  or  otherwise. 

The  only  question  presented  on  the  appeal  is  in  relation  to  the 
measure  of  damages,  and  it  is  certainly  one  not  free  from  .diffi- 
culty. Undoubtedly  the  measure  of  damages  for  converting  a 
negotiable  promissory  note  is  prima  facie  the  amount  of  the  note, 
with  the  interest.  But  this  is  where  the  note  is  the  obligation  of  a 
third  party,  and  its  value  is  to  be  presumed  to  be  the  amount  secured 
by  it,  unless  some  evidence  is  given  tending  to  impair  that  value, 
fiuch  as  the  insolvency  of  the  maker  or  the  invalidity  from  some 
cause  of  the  note.  The  cases  of  Ingalls  v.  Lord  (1  Cowen,  240) ; 
Potter  v.  Merchant^  Bank  (28  K  Y.,  641),  and  Booth  v.  Powers 
(56  id.,  22),  (the  latter  of  which  seems  to  have  been  solely  relied  on 
as  furnishing  the  ground  for  refusing  a  new  trial  at  the  Special 
Term),  were  all  cases  where  the  note  of  a  third  party  had  been  con- 
verted, and  the  rule  before  referred  to,  of  course,  applied. 

But  an  action  may  be  maintained  for  the  conversion  of  a  note 
made  by  the  plaintiff  (Murray  <&  Ogden  v.  Burling,  10  Johns., 
172 ;  Decker  v.  Mathews,  12  N.  Y.,  313) ;  but  in  both  these  case* 
the  note  had  been  negotiated,  and  in  the  one  case  paid  by  the 
maker,  and  in  the  other,  though  it  was  still  outstanding,  it  was  said, 


THAYER  v.  MANLEY. 


FOURTH  DEPARTMENT,  OCTOBER  TERM,  1876. 

- - - _,__ - 

in  the  only  opinion  delivered,  that  the  plaintiff  was  liable  upon  it, 
and  the  preemption  was  that  he  had  paid  it  voluntarily,  or  would 
be  compelled  to  pay  it. 

In  this  case  the  payee  still  holds  the  notes,  and  one  of  them  has 
become  over-due  in  his  hands.  What  damages  then  has  the  plain- 
tiff sustained  ?  The  court  instructed  the  jury  that,  as  a  matter  of 
law,  the  plaintiff  was  entitled  to  rtcover  the  face  of  three  notes, 
with  the  inteiest.  In  the  case  of  Decker  v.  Mat/tews  (supra),  the 
court  said :  "  The  note  in  the  hands  of  any  one  not  a  bonafide 
holder  was  without  value ;  and  it  may  be  conceded  that  had  the 
defendant  destroyed  it,  no  action  could  have  been  maintained 
against  him  by  the  plaintiff.  But  the  defendant  Mathews  took 
the  note  and  by  his  wrongful  act,  caused  it  to  oecome  valuable  in 
the  hands  of  a  bonafide  holder ;  and  he  received,  as  the  fruit  of 
his  wrongful  act,  the  full  amount  of  such  value  and  made  the 
plaintiff  liable  therefor;  and  herein  is  the  gravamen  of  the 
action." 

As  to  the  note  still  in  the  hands  of  the  defendant  and  past  due, 
the  verdict  in  the  case  shows  that  the  note  is  invalid  as  between 
the  parties,  and  there  is  no  possibility  that  it  can  be  in  the  hands 
of  a  'bond  fide  holder  for  value  so  as  so  enable  such  holder  to 
enforce  it  as  against  the  plaintiff.  It  was  held  expressly  in  Booth 
v.  Powers  (supra),  that  in  an  action  for  damages  for  converting  a 
note,  the  fact  that  the  note  was  invalid  might  be  shown  upon  the 
question  of  damages.  The  verdict  in  this  case  would  be  conclus- 
ive of  the  invalidity  of  the  notes ;  and  as  to  that  past  due  would 
be  evidence  of  the  fact  in  the  hands  of  any  subsequent  holder. 

"We  think  it  clear,  therefore,  that  as  to  the  matured  note,  the 
plaintiff,  at  best,  was  entitled  to  recover  only  nominal  damages, 
and  that  as  to  the  other  two  notes  he  was  entitled  to  recover  the 
face  of  them,  principal  and  interest,  as  they  stood  at  the  time  of 
the  trial,  because  the  defendant  had  it  in  his  power  to  transfer  them 
to  a  bonafide  holder  for  value;  in  which  case  the  plaintiff  would 
become  liable  to  pay,  the  same  as  he  was  in  the  case  of  Decker  v. 
Mathews. 

If,  however,  the  defendant  had  seen  fit  to  cancel  the  notes  on 
the  trial,  or  to  return  them  to  the  plaintiff,  we  do  not  see  how  the 
plaintiff  could  have  recovered  more  than  nominal  damages ;  and 


MUNRO  v.  WHITMAN.  553 

FOUBTH  DBPABTMENT,  OCTOBBB  TKRM,  1876. 

the  right  of  cancellation  or  return  of  the  notes  not  yet  matured, 
will  be  available  on  another  trial. 

New  trial  ordered,  costs  to  abide  the  event,  unless  the  defendant 
•hall  cancel  and  return  the  notes  and  pay  the  costs  of  the  action 
within  thirty  days.  In  the  event  he  so  cancels  and  returns  tht 
said  notes  and  pays  said  costs,  including  the  costs  of  the  appeal,  the 
complaint  to  be  dismissed. 

Present  —  MULLIN,  P.  J.,  SMITH  and  TALOOTT,  JJ. 
Ordered  accordingly. 


DANIEL  C.  MUNRO  AND  JOHN  MUNRO,  APPELLANTS,  «. 
JOHN  M.  WHITMAN,  RESPONDENT. 

Partnership  —  what  constitutes  —  agreement  simply  to  share  profits. 

Plaintiff  and  defendant  entered  into  an  agreement,  whereby  plaintiff  was  to  fur- 
nish the  capital  to  carry  on  the  business  of  manufacturing  and  selling  wooden- 
ware,  the  latter  to  receive  one-third  and  the  former  two-thirds  of  the  profita, 
nothing  being  said  in  the  agreement  as  to  any  possible  losses.  Held,  that  the 
mere  fact  that  no  provision  was  made  in  the  agreement,  whereby  the  defendant 
was  bound  to  pay  his  proportion  of  the  losses,  did  not  prevent  the  parties  to  the 
agreement  from  becoming  partners  inter  sese. 

APPEAL  from  a  judgment  in  favor  of  the  defendant,  entered  upon 
the  report  of  a  referee. 

This  action  was  brought  to  secure  an  accounting  between  the  par- 
ties hereto,  the  plaintiffs  claiming  that  they  and  the  defendant  were 
copartners.  The  referee  found  "  that  on  or  about  the  10th  of  May, 
1866,  the  plaintiffs  and  defendant  entered  into  business  relations  as 
follows :  The  plaintiffs,  who  owned  certain  real  estate  in  Chicago, 
Illinois,  suitable  for  the  manufacture  of  wooden-ware,  agreed  to 
furnish  the  same  and  necessary  stock  to  carry  on  the  manufacture 
and  sale  of  wooden-ware,  and  the  defendant  agreed  to  take  charge 
of  the  said  business  and  superintend  the  same,  and  it  was  agreed 
between  the  parties  that  the  plaintiffs  should  have  two-thirds  of  the 
profits,  and  the  defendant  should  have  one-third  of  the  profits. 
HUN— VOL.  VIII.  70 


554  MUNRO  v.  WHITMAN. 

FOURTH  DEPARTMENT,  OCTOBER  TERM,  1876. 

Pursuant  to  such  arrangement,  the  parties  aforesaid  soon  there- 
after commenced  the  manufacture  and  sale  of  wooden-ware  in 
Chicago,  Illinois.  The  plaintiffs,  from  time  to  time,  as  requested 
bj  defendant,  furnished  capital  for  said  business,  until  in  or  about 
the  month  of  April,  1868,  in  all  to  the  amount  of  about  $11,154.68 
more  than  they  drew  out,  and  the  defendant  during  that  time  con- 
tinued to  labor  and  superintend  the  business. 

About  the  time  of  entering  upon  said  enterprise  the  parties  issued 
a  card  as  follows  :  "  Chicago  Tub  and  Pail  Manufacturing  Com- 
pany, Munro,  Whitman  &  Co.,  proprietors  ;  manufactures  of 
wooden-ware,  pails,  tubs,  churns,  half-bushels,  etc.,  North  pier, 
Chicago.  P.  O.  box  2794.  D.  C.  Munro,  J.  Munro,  J.  M.  Whit- 
man." This  was  used  by  the  parties  in  advertising  said  business. 

When  the  contract  for  engaging  in  the  business  was  entered  into, 
nothing  was  said  about  losses,  arid  none  of  the  parties  contemplated 
such  a  contingency. 

No  profits  were  made,  but  there  was  a  loss  of  nearly  all  the  stock 
thus  put  into  the  business. 

The  defendant  received  while  thus  at  work  about  the  sum  of 
$638.88  from  the  avails  of  such  business,  which  he  used  for  his  own 
support." 

He  also  found,  as  matter  of  law,  that  the  plaintiffs  and  defend- 
ant were  not  partners,  and  that  the  plaintiffs  were  not  entitled  to 
an  accounting,  and  accordingly  dismissed  the  complaint. 


&  Davis,  for  the  appellants. 
Sedgwick,  Kennedy  <&  Tracy,  for  the  respondent. 

TALCOTT,  J.  : 

This  action  was  commenced  for  an  accounting  as  between  part- 
ners. The  referee  has  dismissed  the  complaint,  on  the  ground  that 
there  was  no  partnership.  In  this  he  has  proceeded  entirely  upon  the 
ground  that,  at  the  time  of  the  agreement  by  which  the  relations  of  the 
parties  was  established,  nothing  was  said  about  any  possible  losses, 
none  of  the  parties  contemplating  such  a  contingency.  In  the  con- 
clusion that  the  parties  were  not  partners,  because  of  the  absence 
of  any  agreement  to  share  the  losses,  the  referee  clearly  committed 
an  error.  True,  a  person  may,  by  the  agieement  between  the  par 


MUNRO  v.  WHITMAN.  555 

FOURTH  DEPARTMENT,  OCTOBER  TERM,  1876. 

ties,  be  entitled  to  share  the  profits  of  the  business  without  consti- 
tuting him  a  partner,  but  in  such  case  it  must  appear  that  he  was 
to  receive  a  share  of  the  profits  as  a  compensation  for  his  labor  and 
services.  The  whole  foundation  on  which  the  principle  rests  is,  no 
partnership  inter  sese  was  intended  by  the  parties. 

That  the  agent  is  not  clothed  with  the  general  powers,  rights 
and  duties  oi  a  partner ;  that  the  share  of  profits  given  to  him  is 
not  designed  to  make  him  a  partner,  either  in  the  capital  stock  or 
the  profits,  but  to  excite  his  diligence  and  secure  his  personal  skill 
as  an  agent  of  the  concern,  and  is  contemplated  merely  as  a  com- 
pensation therefor.  (Story  on  Partnership,  §§  47,  48.)  A  lawful 
agreement  may  be  made  that  one  of  the  partners  should  bear  a  less 
proportion,  or  even  n<>  part  of  the  losses.  (Id.,  §§  22,  23.) 

In  the  case  of  Lamb  v.  Grover  (47  Barb.,  31 7),  chiefly  relied  upon 
by  the  referee,  Lamb  agreed  to  furnish  groceries  to  sell,  in  the  village 
of  Oakland,  and  to  pay  the  rent  of  the  store  in  which  the  goods  were 
to  be  sold,  and  Adams  agreed  to  sell  the  groceries  for  one-half  of  the 
profits  on  the  sale  of  the  goods.  The  referee  found  in  that  case, 
fhat  the  share  of  profits  to  be  received  by  Adams  was  in  payment 
ind  in  compensation  for  the  services  rendered  by  him  in  the  busi- 
ness. In  such  a  case  it  is  clear  that  there  was  no  partnership  cre- 
ated by  the  agreement. 

The  doctrine  that  persons  cannot  be  partners  as  between  each 
other,  unless  they  agree  to  participate  in  the  losses,  is  founded  on 
the  language  of  the  judges  in  many  cases,  and  in  some  is  the 
apparent  ground  of  the  decision.  (Parsons  on  Partnership,  chap.  5, 
p.  41,  note  «.)  But  the  result  of  all  the  cases  and  the  modern  doc- 
trine seems  to  be,  that  the  exemption  from  losses  is  a  fact  which, 
though  not  conclusive,  is  strong  evidence  that  the  party  thus 
exempted  is  not  an  actual  partner;  and,  taken  in  conjunction  with 
other  circumstances,  may  clearly  show  that  fact.  (See  Parsons  on 
Part.,  note  #,  supra  •  Vanderburgh  v.  Hull  &  Bowne,  20  Wend., 
70 ;  Burckle  v.  Eckart,  1  Denio,  337 ;  S.  C.,  3  Comst.,  132  ;  Ex 
parte  Langdale,  18  Vesey,  301.) 

Lindley  states  as  leading  propositions  in  the  law  of  partnerships 
as  follows : 

"  Prop.  2.  Partnership  is  prima  facie  the  result  of  an  agreement 
to  share  profits,  although  nothing  may  be  said  about  losses. 


556  MUNKO  y.  WHITMAN. 

FOUBTH  Di.rAKTME.NT,  OCTOBER  TEUM,  1876. 

"  Prop.  3.  Partnership  is  prima  facie  the  result  of  an  agreement 
to  share  profits ;  although  community  of  loss  is  stipulated  against." 
(Liudley  on  Partnership,  book  1,  chap.  1,  pp.  13,  17.) 

The  fact  reported  in  the  case  before  us,  and  which  the  referee 
relies  on  as  conclusive  to  show,  of  itself,  that  there  was  no  part- 
nership, brings  the  case  within  the  second  proposition  thus  stated 
by  Mr.  Lindley,  and  affords  prima  facie  evidence  that  the  agree- 
ment between  the  parties  did  contemplate  a  partnership. 

There  was  much  evidence  bearing  upon  the  question  whether 
the  intent  of  the  parties  was  to  create  a  partnership  inter  sese,  and 
the  referee  should  have  determined  and  reported  whether  the  share 
of  the  profits  was  simply  intended  as  a  compensation  to  the  defend- 
ant for  the  time  and  services  employed  by  him  in  the  business,  or 
whether,  from  the  agreement  to  divide  the  profits,  the  usual  result 
of  the  creation  of  a  partnership  followed.  The  fact  that  nothing 
was  said  about  participating  in  the  losses  is  only  evidence  on  the 
question  of  the  intention,  and  may,  in  conjunction  with  the  other 
circumstances  of  the  case,  clearly  establish  that  the  parties  did  not 
intend  to  create  a  partnership.  So,  too,  the  assumption  of  a  firm 
name,  though  affording  strong  evidence  that  a  partnership  was  con- 
templated, and  probably  conclusive  in  favor  of  third  parties,  is  not 
at  all  conclusive  as  between  the  parties  themselves,  who  might, 
notwithstanding,  lawfully  agree  that  as  between  themselves,  the 
defendant  was  not  to  have  the  rights,  or  come  under  the  obli- 
gations of  a  partner. 

Judgment  reversed,  and  a  new  trial  is  ordered  before  another 
referee,  costs  to  abide  the  event. 

Present  —  MULLIN,  P.  J.,  SMITH  and  TALOOTT,  JJ. 

Judgment  reversed,  and  new  trial  ordered  before  another  referee, 
eoets  to  abide  event 


MOORE  v.  McCLURE.  55? 


FOUKTH  DEPARTMENT,  OCTOBER  TERM,  1876. 


CHARLES  T.  MOORE,  APPELLANT,  v.  0.  CERESA  MoOLURE, 

RESPONDENT. 

Cause  of  action — Complaint  —  when  sufficient — Promissory  note  signed  "J.   8. 
McClure,  agent"  —  liability  of  principal  upon. 

The  complaint  alleged  that  the  defendant,  by  J.  S.  McClure,  her  agent,  made  and 
delivered  Tier  promissory  note,  in  writing,  setting  forth  a  copy  of  the  note,  signed 
J.  8.  McClure,  agent,  and  alleging  that  the  consideration  of  the  note  was  goods 
sold  to  the  defendant.  The  defendant  demurred.  The  demurrer  was  sustained 
at  Special  Term  on  the  grounds  that  the  note  did  not  refer  to  the  defendant  by 
name,  and  did  not  show  that  McClure  had  authority  to  sign  as  her  agent.  Held, 
that  the  complaint  stated  facts  sufficient  to  constitute  a  cause  of  action. 

That,  under  the  allegation  that  the  defendant  made  and  delivered  her  promissory 
note,  it  would  be  competent  to  show  that  the  person  signing  the  note  was  duly 
authorized  by  her  so  to  do. 

The  fact  that  the  name  of  the  defendant  did  not  appear  upon  the  face  of  the  note, 
would  not  prevent  the  plaintiff  from  introducing  evidence  to  show  that  she  waa 
bound  thereby. 

APPEAL  from  an  order  made  at  the  Special  Term  sustaining  a 
iemurrer  to  the  second  count  of  the  complaint  herein. 

The  count  was  as  follows  :  "And  for  a  second  and  further  cause 
of  action  the  plaintiff  alleges  that  on  the  7th  day  of  January,  1875, 
the  said  defendant,  by  J.  S.  McClure,  her  said  agent,  made  and 
delivered  to  this  plaintiff  her  promissory  note  in  writing,  of  which 

the  following  is  a  copy  : 

CANANDAIGUA,  January  1th,  1874:. 

Twenty  days  after  date  I  promise  to  pay  to  the  order  of  C.  T. 
Moore  sixty-one  and  sixty-two  one-hundredths  dollars,  at  Williams 
&  Remington's  Bank,  value  received,  with  use  and  exchange  ot» 

New  York. 

JOHN  S.  McCLURE,  Agent." 

That  said  note  was  given  by  said  McClure  to  plaintiff,  for  and 
as  the  agent  of  said  defendant,  and  that  said  note  was  given  by 
said  defendant,  by  her  said  agent,  for  and  on  account  of  goods, 
wares  and  merchandise  theretofore  sold  and  delivered  by  said 
plaintiff  to  said  defendant. 

J.  K  Roe,  for  the  appellant. 

George  F.  Jackson,  for  the  respondent. 


558  MOORE  v.  McCLURE. 

FOURTH  DEPARTMENT,  OCTOBER  TERM,  1876 

TALOOTT,  J. : 

This  is  an  appeal  from  an  order  made  at  the  Special  Term  in 
Monroe  connty  sustaining  a  demurrer  to  the  second  count  of  the 
complaint.  The  cause  of  demurrer  assigned  is,  that  the  count  does 
not  state  facts  sufficient  to  constitute  a  cause  of  action. 

The  count  contains,  in  substance,  the  following  averments  :  That 
the  defendant,  by  J.  S.  McClure,  her  agent,  made  and  delivered  to 
the  plaintiff  her  promissory  note,  in  writing,  of  which  a  copy  is  set 
forth,  and  appears  to  be  a  note  in  the  ordinary  form,  promising  to 
pay  to  the  plaintiff  or  order  sixty-one  dollars  and  sixty-two  cents 
at  a  bank  therein  named,  for  value  received,  purporting  to  be  signed 
as  follows :  John  S.  McClure,  agent.  That  the  note  was  given  by 
said  McClure  to  the  plaintiff  for  and  as  the  agent  of  the  defendant 
for  goods,  wares,  and  merchandise  theretofore  sold  and  delivered 
by  the  plaintiff  to  the  defendant.  That  the  defendant,  before  the 
commencement  of  the  action,  promised  and  agreed  to  pay  the  note  ; 
that  no  part  thereof  has  been  paid,  and  that  there  is  due  and  owing 
from  the  defendant  to  the  plaintiff  sixty-one  dollars  and  sixty-two 
cents,  with  interest  from  January  7,  1875,  on  the  note. 

The  demurrer  was  sustained  on  the  ground  that  the  note  does 
not  refer  to  the  defendant  by  name,  ami  the  count  does  not  show 
that  J.  S.  McClure  had  authority,  as  the  agent  of  the  defendant, 
to  make  the  note,  or  that  it  was  made  in  the  business  of  his 
agency. 

We  think  the  count  is  sufficient.  It  avers  that  the  defendant,  by 
her  agent,  in  consideration  of  goods  etc.,  sold  and  delivered  to 
her,  made  her  note.  The  statement  that  it  was  made  by  her  agent 
was  unnecessary,  and  is  superfluous.  The  allegation  that  the 
defendant  made  her  note,  when  it  appears  to  have  been  in  fact 
signed  by  another  party,  necessarily  includes  the  allegation  that 
such  other  party  was  duly  authorized  to  make  the  note  in  behalf  of 
the  defendant,  and  under  it  proof  could  have  been  given,  and 
would  be  requisite,  to  establish  that  it  was  in  fact  the  note  of  the 
defendant,  by  proving  the  authority  of  the  agent  to  make  the  note 
in  her  behalf.  It  could  not  be  true  that  she  made  and  delivered 
her  note,  unless  the  agent  was  duly  authorized  to  make  and  deliver 
the  note  in  her  behalf.  The  fact  that  the  name  of  the  principal 
does  not  appear  on  the  face  of  the  note  is  not,  under  the  modern 


KENT  v.  REYNOLDS.  559 

FOURTH  DEPABTMENT,  OCTOBEB  TEBM,  1876. 

decisions  in  this  State,  at  all  conclusive.  If  it  was  intended  to  be 
given  in  the  business  of  the  principal,  was  in  fact  so  given,  and 
with  due  authority,  it  is  binding  on  the  principal,  and  all  this  is 
matter  of  evidence,  all  covered  by  the  averment  that  it  is  the  note 
of  the  principal. 

The  order  sustaining  the  demurrer  is  reversed  with  costs,  with 
leave  for  the  defendant  to  amend  within  twenty  days,  on  payment 
of  the  costs  of  the  demurrer  and  appeal. 

Present  —  MULLIN,  P.  J.,  SMITH  and  TALCOTT,  J J. 

Order  sustaining  demurrer  reversed  with  costs,  with  leave  to 
defendant  to  answer,  on  payment  of  costs  of  demurrer  and  appeal. 


JAMES  M.  KENT,  APPELLANT,  v.  ANDREW  C.  REYNOLDS, 

RESPONDENT. 

Surrender  and  cancellation  —  of  note,  not  paid  in  fuU — no  right  of  action,  exittt 
thereafter  for  amount  unpaid. 

"Where  a  creditor  surrenders  to  bis  debtor  an  obligation  for  the  purpose  of  can- 
cellation, and  the  latter,  in  pursuance  of  such  agreement,  cancels  and  destroys 
the  same,  no  action  can  thereafter  be  maintained  thereon  by  the  creditor,  in  the 
absence  of  any  fraud,  mistake  or  illegality  in  the  transaction,  even  though  the 
amount  paid  by  the  debtor  was  less  than  the  amount  due  upon  the  obligation 
eurrendered. 

APPEAL  from  an  order  of  the  County  Court  of  Onondaga  county 
granting  a  new  trial. 

F.  M.  Evarte,  for  the  appellant 
W.  Scmders,  for  the  respondent. 

TALOOTT,  J. : 

The  assignor  of  the  plaintiff  held  certain  notes  against  the  defend- 
ant, made  in  1868,  amounting  to  $150,  without  interest,  on  which 


560  KENT  v.  REYNOLDS. 

FOURTH  DEPARTMENT,  OCTOBER  TERM,  1878. 

only  five  dollars  had  been  paid.  The  defendant  becoming  insolv- 
ent, the  holder  of  the  notes  agreed  to  take  fifty  cents  on  the  dollar 
for  the  notes.  The  defendant  procured  a  relative  to  advance  to  take 
up  the  notes  seventy-five  dollars,  being  at  the  rate  of  fifty  cents  on 
the  dollar  for  the  face  of  the  notes,  not  including  five  dollars  which 
had  been  paid.  The  assignor  of  the  plaintiff  received  the  seventy- 
five  dollars  from  the  defendant's  relative,  Turner,  and  the  promise  of 
the  defendant  to  pay  the  balance  to  make  up  the  sum  of  fifty  cents 
on  the  dollar,  as  the  plaintiff  claims.  The  defendant  denies  this, 
and  insists  that  the  notes  were  sold  to  Turner  for  the  seventy-five 
dollars  paid.  At  all  events,  the  notes  were  delivered  up  by  the 
assignor  of  the  plaintiff  to  Turner,  with  the  full  intention  of  sur- 
rendering the  same.  It  is  claimed  by  the  plaintiff  that  the  notes 
were  not  purchased  by  Turner,  but  that  the  seventy-five  dollars 
was,  in  fact,  a  loan  from  Turner  to  the  defendant,  and  the  payment 
was,  in  substance,  by  the  defendant  of  seventy-five  dollars  in  satis- 
faction of  a  larger  sum  due  on  the  notes.  Turner  held  the  notes 
for  two  years  or  thereabouts,  when  the  defendant  gave  to  Turner 
his  note  for  the  seventy-five  dollars,  and  interest,  and  received  his 
own  note  for  $150,  which  he  destroyed.  The  plaintiff's  assignor, 
the  father  of  the  plaintiff,  testifies  that  he  fully  agreed  to  surrender 
the  notes  for  fifty  cents  on  the  dollar,  and  that  he  delivered  them 
to  Turner  with  no  agreement  or  expectation  that  they  should  be 
returned  to  him,  and  that  he  relied  on  the  promise  of  the  defendant 
to  pay  him  the  difference  between  the  seventy-five  dollars  and  the 
amount  necessary  to  make  the  payment  equal  fifty  per  cent  of  the 
notes,  which  he  states  to  be  twelve  dollars  and  fifty  cents. 

The  action  was  originally  commenced  in  a  Justice's  Court,  where 
the  plaintiff  recovered  a  judgment  for  fifteen  dollars  and  ninety- 
two  cents  and  costs,  which  was  probably  the  amount  with  interest 
remaining  unpaid  on  the  compromise.  The  plaintiff  appealed  to 
the  County  Court  for  a  new  trial.  The  cause  was  retried  in  the 
County  Court,  where  the  plaintiff,  under  the  charge  of  the  court  to 
the  jury,  obtained  a  verdict  for  $100.  The  County  Court  set  the 
verdict  aside,  and  granted  .a  new  trial  on  the  minutes,  and  from  the 
order  granting  a  new  trial  the  plaintiff  appeals.  The  new  trial 
was  granted  in  the  County  Court,  on  the  ground  that  the  charge 
was  erroneous.  The  county  judge  had  instructed  the  jury  as 


KENT  v.  REYNOLDS.  561 


FOUBTH  DEPARTMENT,  OCTOBEK  TERM,  1876. 


follows :  "  If  the  agreement  between  Kent  and  .Reynolds  was  that 
fifty  cents  on  the  dollar,  amounting  to  eighty-seven  dollars  and 
fifty  cents,  was  to  be  paid  to  eifect  the  compromise,  and  there  was 
no  absolute  sale  of  the  notes  by  Kent  to  Turner,  but  Turner 
a  i?anced  the  seventy-five  dollars  to  Kent,  and  received  the  notes 
from  him  at  the  request  of  Reynolds,  acting  for  him  pursuant  to 
to  the  agreement  between  Kent  and  Reynolds,  that  Reynolds 
would  pay  the  balance  of  twelve  dollars  and  fifty  cents  to  make  up 
the  compromise  money,  or  fifty  cents  on  the  dollar,  then  the  plain- 
tiff was  entitled  to  recover  the  full  amount  of  the  notes,  less  the 
seventy-five  dollars  paid  by  Turner." 

To  this  part  of  the  charge  the  defendant  excepted,  and  requested 
the  court  to  charge  "  that  in  any  event  the  plaintiff  could  only 
recover  the  balance  of  the  compromise  money,  twelve  dollars  and 
fifty  cents,  and  the  interest  thereon,"  and  the  court  refused  so  to 
charge,  and  the  defendant  excepted.  We  think  the  County  Court 
was  correct  in  ordering  a  new  trial.  Conceding  that  the  amount 
^aid  by  Turner  was  to  be  consfdered  as  a  loan  by  him  to  the 
defendant,  and  that  Turner  acted  merely  as  the  agent  of  the  defend- 
ant in  receiving  the  notes  and  paying  the  seventy-five  dollars,  and 
that  the  plaintiff'  relied  upon  the  promise  of  the  defendant  to  pay 
the  twelve  dollars  and  fifty  cents  to  make  up  the  full  amount  of 
the  compromise,  yet  the  holder  of  the  notes  voluntarily  surren- 
dered them  for  cancellation,  without  any  fraud  or  mistake,  but 
voluntarily  and  in  pursuance  of  his  own  agreement,  and  for  a  con- 
sideration deemed  advantageous  at  the  time.  When  the  obligation 
of  a  debtor  is  thus  surrendered  for  cancellation,  and  in  pursuance 
of  such  surrender  the  debtor  has,  as  he  was  authorized  by  the 
agreement  to  do,  cancelled  or  destroyed  the  obligation,  no  action 
can  afterwards  be  maintained  thereon  by  the  creditor,  who  alleges 
no  fraud,  mistake  or  illegality  in  the  transaction.  (Beach  v. 
JShdress,  51  Barb.,  5TO.)  This  is  not  like  the  case  when  a  usurious 
obligation  has  been  taken  for  a  valid  debt.  In  the  latter  case  the 
contract  by  which  the  usurious  obligation  is  substituted  is  unlaw- 
ful and  declared  by  the  statute  to  be  void,  and  if  the  obligor  sets 
up  the  illegality  of  the  substituted  obligation,  the  original  valid 
debt  is  revived,  and  may  be  recovered.  (  Winstead  Bank  v.  Webb, 
39  N.  Y.,  330.) 

HUN— VOL.  VIII.        71 


562  BROWN  v.  PEOPLE. 


FOURTH  DEPARTMENT,  OCTOBER  TERM,  1876. 


We  think  the  plaintiff's  recovery  should  have  been  confined  a* 
stated  in  the  defendant's  request  to  charge. 
The  order  is  affirmed,  with  costs. 

Present  —  MULLIN,  P.  J.,  SMITH  and  TALOOTT  J J 
Order  affirmed,  with  costs. 


HARLEY  BROWN,  PLAINTIFF  IN  ERROR,  v.  THE  PEOPLE  OF 
THE  STATE  OF  NEW  YORK,  DEFENDANTS  IN  ERROR. 

fbrged  note  —  name  of  fictitious  person — evidence  of  payment  of,  immaterial — Evi- 
dence of  prior  arrest  of  prisoner —  Objection  to  question  tending  to  degrade  —  may  be 
taken  by  counsel  when  witness  is  a  party. 

It  is  not  necessary,  in  order  to  constitute  the  crime  of  forgery,  that  the  name 
alleged  to  be  forged  should  be  that  of  any  person  in  existence ;  it  may  be  the 
name  of  a  purely  fictitious  person. 

Upon  the  trial  of  an  indictment  for  uttering  a  forged  promissory  note,  evidence 
tending  to  show  that  the  note  had  been  paid  is  immaterial,  and  is  properly 
excluded. 

Upon  an  indictment  for  forgery  the  prisoner,  on  his  examination  in  his  own  behalf, 
was  asked,  with  a  view  of  impeaching  his  character,  "How  many  times  have 
you  been  arrested?  "  Held,  that  the  question  was  improper,  as  the  mere  fact  of 
his  arrest  had  no  tendency  to  impeach  his  character  in  any  particular. 

Brandon  v.  The  People  (42  N.  Y.,  265)  distinguished. 

Semble,  that  although  the  right  of  a  witness  to  object  to  answering  any  question,  on 
the  ground  that  it  will  tend  to  disgrace  and  degrade  him,  is  a  personal  privilege 
which  must  be  claimed  by  the  witness,  yet  that  the  rule  is  different  in  the  case 
of  a  party  examined  as  a  witness,  and  that  in  this  case  the  objection  may  be 
taken  by  his  counsel,  whose  duty  it  is  to  protect  his  rights  and  interpose  objec- 
tions in  his  interests  growing  out  of  any  incident  in  the  litigation. 

WRIT  of  error  to  the  Court  of  General  Sessions  of  Ontario 
oounty,  to  review  the  conviction  of  the  plaintiff  in  error  of  forgery 

The  indictment  upon  which  the  plaintiff  in  error  was  convicted 
contained  two  counts  —  one  for  feloniously  forging  a  promissory 
note,  signed  by  Edwin  Brown,  Lucretia  Brown  (father  and  mother 
of  plaintiff  in  error),  and  Albert  Bennett ;  and  the  other  for  utter- 
ing and  publishing  the  same  with  intent  to  defraud  one  Josepn 
C.  Shelton. 


BROWN  v.  PEOPLE.  563 

FOURTH  DEPARTMENT,  OCTOBER  TERM,  1876. 
E.  W.  Gardner,  for  the  plaintiff  in  error. 

frank  Rice,  district  attorney,  for  the  defendants  in  error. 

TALCOTT,  J. : 

The  writ  of  error  in  this  case  brings  up  a  record  of  the  convic- 
tion of  the  plaintiff  in  error  in  the  General  Sessions  of  Ontario 
county,  with  a  bill  of  exceptions  attached.  The  conviction  is  for 
feloniously  uttering  as  true  a  forged  promissory  note  for  the  pay- 
ment of  money. 

The  bill  of  exceptions  contains  numerous  exceptions  to  the  rul- 
ings of  the  court  on  the  admissibility  of  evidence,  to  the  charge 
and  refusals  to  charge.  To  consider  iu  detail  all  these  exceptions 
is  impossible,  within  any  ordinary  limits ;  and  since  we  are  of  the 
opinion  that  the  judgment  should  be  reversed  and  a  new  trial 
ordered,  we  shall  only  advert  to  some  of  the  leading  questions  pre- 
sented on  the  trial —  such  as  are  likely  to  arise  on  another  trial. 

The  evidence  tending  to  identify  Albert  L.  Bennet  as  the  person 
designed  to  be  represented  by  the  forged  signature,  such  as  the 
name  by  which  said  Bennet  was  usually  known  in  the  community, 
the  place  of  his  residence,  in  connection  with  the  statement  of  the 
defendant,  and  the  fact  that  no  other  person  by  the  name  of  Albert 
Bennet  was  known  in  the  county  of  Ontario,  was  all  admissible  on 
the  question  as  to  who  was  intended  to  be  represented  by  the 
forged  signature.  The  omission  of  the  initial  of  the  middle  name 
of  the  person,  whom  the  evidence  showed  was  intended  to  be  rep- 
resented by  the  forged  signature,  was  immaterial.  In  order  to  con- 
stitute forgery  it  is  not  necessary  that  the  name  alleged  to  be 
forged  should  be  that  of  any  person  in  existence.  It  may  be 
wholly  fictitious  ;  yet  when  made  or  uttered  with  intent  to  defraud, 
snch  making  or  uttering  is  punishable  as  a  forgery.  (1  Colby's 
Crim.  Law,  183.) 

The  evidence  offered  by  the  defendant  to  show  that  the  note  had 
been  wholly  or  partially  paid,  or  had  been  secured  by  a  chattel 
mortgage,  did  not  answer  the  legal  inference  of  the  intent  to 
defraud  which  grew  out  of  the  false  making,  or  knowingly  passing 
as  genuine,  the  note  in  question  ;  and  being  immaterial  was  prop- 
erly rejected.  (1  Colby's  Orim.  Law,  and  cases  there  referred  to.) 


564  BROWN  v.  PEOPLE. 

FOURTH  DEPARTMENT,  OCTOBER  TERM,  1876. 

Edwin  Brown,  who,  with  his  wife  Lucretia,  purported  to  be 
signers  of  the  note  in  question,  had  testified  concerning  the  signa 
tures  of  himself  and  wife,  in  a  manner  tending  td  show  that  the 
Baid  Lucretia  had  personally  placed  her  signature  to  the  note ;  and 
the  note  being  legitimately  in  evidence  before  the  jury,  we  see  no 
objection  to  the  course  of  the  public  prosecutor  in  calling  attention 
to  the  fact  claimed  by  him,  that  both  the  signatures  of  Edwin  and 
Lucretia  appeared  to  have  been  written  by  the  same  hand.  This 
•was  done  to  throw  some  discredit  on  the  testimony  of  Edwin  Brown  ; 
and  though  of  no  great  importance,  we  do  not  think  any  exception 
could  be  taken  to  the  refusal  of  the  court  to  stop  that  line  of 
argument. 

The  prisoner  having  offered  himself  as  a  witness  in  his  own 
behalf,  was,  on  cross-examination,  asked  by  the  district  attorney, 
the  following  question  :  "  How  many  times  have  you  been 
arrested  ? "  This  was  objected  to  by  the  prisoner's  counsel  as 
incompetent,  irrelevant,  tending  to  degrade  the  witness,  etc.  The 
objection  was  overruled  and  the  prisoner's  counsel  excepted. 
The  question  was  asked  with  a  view  of  impeaching  the  character 
of  the  prisoner  by  the  answer,  and  he  answered :  "  Five  times, 
I  believe."  We  do  not  think  this  evidence  was  admissible  as 
an  impeachment  of  the  prisoner's  character,  either  generally  or 
for  truth  and  veracity — for  which  purpose  only  it  is  claimed 
to  have  been  offered.  (Jackson  v.  Osborn,  2  Wend.,  555 ; 
People  v.  Gay,  7  N.  Y.,  378 ;  Lipe  v.  Eisenlerd,  32  id.,  229. 
op.  p.  238.)  In  the  case  of  Jackson  v.  Osborn,  referred  to,  it 
was  held,  that  even  evidence  of  indictments  found  against  the 
witness  for  forgery  and  perjury  were  inadmissible,  without  proof 
of  conviction.  How,  then,  can  evidence  of  a  mere  arrest,  with- 
out even  specifying  that  the  arrest  was  upon  the  charge  of 
crime,  be  admitted  as  an  impeachment  of  the  character  of  the 
party  arrested,  in  any  particular.  The  evidence  was  calculated  to 
prejudice  the  prisoner  in  the  minds  of  the  jury,  for  which  purpose 
it  was  offered  ;  and  having  been  admitted  against  his  objection,  we 
cannot  say  that  it  did  not  produce  some  effect,  however  much  the 
other  evidence  in  the  case  might  be  supposed  to  have  warranted  the 
conviction. 

In  the  case  of  Brandon  v.   The  People  (42  N.  Y.,  265),  the 


BROWN  v.  PEOPLE.  565 

FOURTH  DEPARTMENT,  OCTOBER  TERM,  1876. 

admission  of  a  similar  question  was  sustained ;  but  as  we  under 
stand  that  case,  wholly  upon  the  ground  that  the  only  objection 
made  to  it  was  that  the  prisoner  had  not  put  her  character  in  issue, 
wholly  ignoring  the  rule  that  the  prisoner,  having  made  her- 
self a  witness,  was  subject  to  the  same  liability  to  have  her  charac- 
ter attacked  by  proof  of  facts  having  a  tendency  to  degrade  her  in 
the  estimation  of  the  jury  that  any  ordinary  witness  was  liable  to  ; 
and  we  understand  the  case  to,  impliedly  at  least,  concede,  that 
had  the  proper  objection  been  stated  the  question  should  have 
been  excluded. 

There  is,  in  reference  to  the  testimony  thus  objected  to,  another 
question  which  gives  rise  to  grave  doubts.  The  counsel  for  the 
prisoner  then  on  the  witness  stand,  interposed  the  objection  that 
the  prisoner  (and  witness)  was  privileged  from  answering  the  same, 
on  the  ground  that  the  answer  must  tend  to  disgrace  and  degrade 
him,  and  was  wholly  immaterial  to  any  issue  in  the  case.  This  is 
answered  by  saying  that  the  privilege  is  personal  to  the  witness, 
and  the  objection  must  be  taken  by  him.  True,  this  is  the  rule 
where  the  person  under  examination  is  a  mere  witness  ;  arid  it  is 
held  that,  in  such  a  case,  the  objection  of  the  party  is  unavailing. 
But  under  the  present  state  of  the  law  where  the  parties  are  also 
witnesses,  it  would  seem  that  a  different  rule  should  prevail,  and 
that  a  party  to  the  suit  being  under  examination  as  a  witness,  the 
objection  may  properly  be  stated  by  his  counsel,  and  that  it  should 
be  held  that  the  witness  and  party  must  be  assumed  to  speak 
through  the  mouth  of  his  counsel,  who  is  presumed  to  be 
authorized  and  required  to  protect  his  rights,  and  interpose 
objections  in  his  interest  growing  out  of  any  incident  in  the 
litigation. 

How  this  may  be  it  is  not  necessary  to  decide  at  this  time,  inas- 
much as  we  think  the  question  was  inadmissible  upon  the  general 
objection  that  the  answer  could  have  no  legitimate  tendency  to 
impeach  the  character  of  the  prisoner,  and  was  therefore  irrelevant 
and  calculated  to  prejudice  him.  For  this  reason,  and  without 
more  particularly  discussing  the  numerous  other  exceptions  taken 
in  behalf  of  the  prisoner,  we  think  the  conviction  should  be 
reversed  and  a  new  trial  ordered. 


56()  PEOPLE  KX  UKI..  SHAW  u.  SCOTT 

FOURTH  DEPARTMENT,  OCTOBER  TERM,  1876. 

Judgmeiit  reversed  and  proceedings  remitted  to  the  General  Ses- 
sions of  Ontario  county,  with  directions  for  a  new  trial. 

Present  —  MULLIN,  P.  J.,  SMITH  and  TALOOTT,  JJ. 

Judgment  reversed  and   proceedings  remitted  to  the  General 
Sessions  of  Ontario  county,  with  directions  for  a  new  trial. 


THE  PEOPLE  OF  THE  STATE  OF  NEW  YORK  EX  REL. 
LYMAN  SHAW,  RESPONDENT,  v.  WARREN  SCOTT, 
COMMISSIONER  OF  HIGHWAYS  OF  THE  TOWN  OF  ARKWRIGHT, 
APPELLANT. 

Freeholder  —  Titie  to  real  estate  —  Inheritance  subject  to  power  of  tale. 

One  who  has  a  title  to  real  estate  is  a  freeholder,  irrespective  of  the  amount  or 
value  of  his  interest  therein. 

A  testator,  by  his  will,  directed  the  sale  of  certain  real  estate,  and  the  distribution 
of  the  proceeds  among  the  children  of  his  present  wife,  the  will  naming  no 
executor  and  containing  no  power  of  sale.  Held,  that  the  title  to  the  real  estate 
vested,  upon  his  death,  in  his  heirs  at  law,  and  that  a  child  by  a  former  wife 
was,  until  a  sale  should  be  made  in  pursuance  of  the  will,  a  freeholder,  and, 
as  such,  authorized  to  sign  a  certificate  as  to  the  necessity  and  propriety  of 
opening  a  highway. 

APPEAL  from  a  judgment  entered  upon  the  report  of  a  referee 
awarding  a  peremptory  mandamus. 

Morris  <&  Russell,  for  the  appellant. 
Julius  A.  Parsons,  for  the  respondent. 

TALCOTT,  J. : 

This  is  an  appeal  from  a  judgment  awarding  a  peremptory  man- 
damus, requiring  the  defendant,  sole  commissioner  of  highways  of 
the  town  of  Arkwright  in  Chautauqua  county,  to  open  and  work  a 
certain  proposed  highway. 

The  proposed  highway  passes  through  improved  and  cultivated 
lands,  whereby,  in  order  to  authorize  the  opening  of  the  same 


PEOPLE  EX  KEL.  SHAW  v.  SCOTT.  567 

FOURTH  DEPARTMENT,  OCTOBEB  TERM,  1876. 

against  the  owners'  consent,  a  certificate  of  twelve  reputable  free- 
holders of  the  town  that  the  highway  is  necessary  and  proper,, 
became  requisite.  Such  a  certificate  the  relator  claims  was  made. 
The  commissioner,  however,  refused  to  open  said  highway  upon 
the  ground  that  Ransler  Luce,  one  of  the  twelve  who  had  signed 
the  certificate,  was  not  a  freeholder  of  the  town.  The  lelator 
appealed  from  the  refusal  of  the  commissioner  to  the  county  judge, 
who,  pursuant  to  the  statute,  appointed  three  referees,  who  reversed 
the  decision  of  the  commissioner  and  ordered  the  road  to  be  laid 
out. 

The  commissioner  still  refusing,  the  relator  obtained  an  alter- 
native mandamus.  To  this  the  commissioner  appeared  and 
answered,  and  issue  was  joined  between  the  parties  upon  the 
question,  whether  said  Ransler  Luce  was  a  freeholder  or  not.  The 
issue  came  on  to  be  tried  at  the  Chautauqua  Circuit,  when  it  was 
referred  by  consent  of  both  parties  to  a  counselor  of  this  court. 
The  matter  was  tried  before  the  referee,  who  reported  in  favor  of 
the  relator.  The  report  was  confirmed,  and  judgment  that  a  per- 
emptory mandamus  issue  was  ordered.  From  that  judgment  the 
appeal  was  taken.  The  only  point  decided  by  the  referee  was, 
that  Ransler  Luce  was  a  freeholder,  and  that  he  was  the  owner  of 
a  distributive  portion  of  forty  acres  of  laud  in  said  town,  title  to 
which  was  acquired  by  said  Ransier  Luce  by  inheritance,  as  one  of 
the  heirs  at  law  of  Moses  Luce,  deceased. 

By  the  term  "freeholder"  is  meant  such  as  have  title  to  real 
estate.  (People  v.  Hynds,  30  N.  Y.,  472.)  The  amount  or  value 
of  such  freehold  interest  is  not  prescribed. 

The  said  Ransler  Luce  was  one  of  the  heirs  at  law  of  Moses 
Luce,  deceased,  and  the  question,  whether  he  took  title  to  any  part 
of  the  forty  acres,  depends  upon  the  construction  of  a  clause  in  the 
will  of  Moses  Luce,  which  is  in  the  following  words,  viz :  "  I  direct 
that  my  forty-acre  lot,  being  the  east,  middle  part  of  lot  twenty- 
six,  be  sold,  and  the  proceeds  be  divided  between  the  children  of 
my  present  wife,  equally,  except  my  son  John  Luce  is  to  have 
$100  less  than  an  equal  share,  and  my  son  William  B.  Luce  is  to 
have  fifty  dollars  less,  and  my  son  Curtis  Luce,  is  to  have  fifty 
dollars  less  than  an  equal  share." 

The  will  named  no  executor,  and  no  power  of  sale  was  contained 


568  PEOPLE  KX  REL.  SHAW  v.  SCOTT. 

FOURTH  DEPARTMENT,  OCTOBER  TERM,  1876. 

in  it,  except  as  aforesaid.  Ransler  Luce  was  a  son  by  a  former  wife. 
By  the  common  law  the  land  descends  to  the  heir,  unless  devised 
to  somebody  else  (4  Kent,  375) ;  and  the  heir  is  not  to  be  deprived 
of  the  inheritance,  except  by  express  words  or  necessary  implication. 
To  take  away  the  right  of  the  heir  the  utmost  certainty  of  the  tes- 
tator's intention  is  required.  (1  Black.  Com.,  450.) 

The  clause  in  question  directs  a  sale  of  the  forty-acre  lot,  and  a 
division  of  the  proceeds.  A  power  in  trust  to  sell  and  divide  is 
thereby  implied,  and  if  an  executor  had  been  named,  probably  the 
power  in  trust  would  have  devolved  on  him  ;  but  in  the  absence  of 
such  appointment,  the  court  will  appoint  a  trustee ;  such  trustee  of 
the  power  will  not  take  the  title  to  the  land,  but  a  naked  power. 
Where,  in  the  mean  time,  does  the  title  vest  ?  It  can  only  vest  in 
the  heirs  at  law,  subject  to  the  execution  of  the  power  of  sale. 
Such  a  provision  in  a  will  is  not  a  devise  of  the  land  to  the  dis- 
tributees. "  They  took  the  price  of  the  land,  not  the  land  itself." 
(MeaJcings  v.  Cromwell,  1  Seld.,  136.)  The  gift  was  of  money, 
not  of  land.  Conceding  that,  for  equitable  purposes,  the  land  is  to 
be  deemed  as  converted  into  money ;  yet  it  is  not  so  converted,  and 
in  the  mean  time  the  legal  title  must  vest  in  somebody ;  unless 
devised  to  "somebody  else,  it  descends  to  the  heirs  at  law,  and  the 
mere  legal  title  is  the  subject  of  inquiry.  If  the  power  had  been 
by  the  will  devolved  upon  executors  or  other  trustees,  then,  as  they 
were  not  empowered  to  receive  the  rents  and  profits,  the  statute 
declares  that  no  estate  shall  vest  in  the  trustees,  but  the  land 
descends  to  the  heirs,  subject  to  the  execution  of  the  power.  (1  R. 
S.,  729,  §  56  ;  Germond  v.  Jones,  2  Hill,  569 ;  Reed  v.  Underbill, 
12  Barb.,  113.) 

The  referee,  therefore,  was  correct  in  deciding  that  the  said 
Ransler  Luce  was  a  freeholder  within  the  meaning  of  the  highway 
statutes. 

The  judgment  is  affirmed. 

Present  —  MULLIN,  P.  J.,  SMITH  and  TALOOTT,  JJ. 
Judgment  affirmed. 


HALEY  v.  WHEELER.  569 

FOURTH  DEPARTMENT,  OCTOBER  TERM,  1876. 


DAVID  HALEY,  RESPONDENT,  v.  WILLIAM  H.  WHEELER 

APPELLANT. 

Trespass  —  possession  —  Justice's  Court  —  title  to  land  —  when  not  in  question  — 
effect  of  judgment  in  ejectment. 

Although,  as  a  general  rule,  trespass  qua/re  dausum  fregtt  can  only  be  maintained 
by  one  in  actual  possession  of  the  premises  when  the  injury  is  committed, 
yet  in  the  case  of  a  disseisin  the  disseisee,  after  he  has  regained  possession, 
may  maintain  the  action  against  the  disseisor  for  acts  intermediate  the  disseisin 
and  re-entry. 

Wheeler  brought  an  action  of  ejectment  against  Haley,  and,  having  recovered 
judgment  therein,  entered  into  possession  of  the  premises  ;  subsequently  this 
judgment  was  set  aside,  and  upon  the  new  trial  Haley  recovered  a  judgment, 
wliereupon  possession  of  the  premises  was  surrendered  to  him  by  Wheeler 
In  an  action  of  trespass  quare  dausum  fregit  by  Haley  to  recover  for  acts  com 
mitted  by  Wheeler  while  in  possession  under  the  tirst  judgment,  held,  that 
he  was  entitled  to  recover.  Held,  further,  that  in  such  action  the  title  to  land 
did  not  come  in  question  so  as  to  deprive  a  justice  of  the  peace  of  jurisdiction 
thereof,  as  the  final  judgment  in  the  ejectment  suit  conclusively  established  that 
the  title  was  in  Haley  as  against  Wheeler. 

APPEAL  from  a  judgment  of  the  County  Court  of  Cattaraugus 
county  in  favor  of  the  plaintiff,  entered  upon  the  verdict  of  a  jury. 

Ansley  &  Vreeland,  for  the  appellant. 
A.  Starrs,  for  the  respondent. 

TALOOTT,  J. : 

This  is  an  action  of  trespass.  The  complaint  is  in  form  for  a 
trespass  vi  et  armis  quare  dausum  fregit.  The  suit  was  originally 
commenced  before  a  justice  of  the  peace.  Before  the  justice  a 
judgment  was  rendered  for  the  defendant,  on  a  verdict  of  no  cause 
of  action.  The  plaintiff  appealed  to  the  County  Court  of  Cattarau- 
gus, where  the  jury  rendered  a  verdict  in  his  favor  for  fifty-three 
dollars,  and  judgment  was  entered  for  that  sum.  A  motion  was 
made  in  the  County  Court  for  ;i  new  irial,  which  was  denied,  and 
thereupon  the  defendant  brought  this  appeal.  The  answer  of  the 
defendant  was,  that  he  went  into  possession  of  the  land  in  the  com- 
HUN— VOL.  VIII.  72 


570  HALEY  v.  WHEELER. 

FOURTH  DEPARTMENT,  OCTOBER  TERM,  1876. 

plaint  described,  under  and  by  virtue  of  a  judgment  in  the  defend 
ant's  favor  and  nguinst  tiie  plaintiff,  awarding  the  possession  of  the 
premises  to  the  defendant. 

On  the  trial  a  record  of  judgment  in  an  action  of  ejectment  was 
introduced,  commenced  by  Wheeler  the  now  defendant,  against 
Haley  the  present  plaintiff,  from  which  it  appeared  that  Wheeler 
first  obtained  judgment  in  the  action  of  ejectment.  On  this  judg- 
ment Wheeler  was  put  into  possession  of  the  premises  on  which 
the  alleged  trespass  was  committed.  This  judgment  was  after- 
ward vacated  and  set  aside,  and  after  various  proceedings  in  the 
action  a  new  trial  was  had,  and  Haley  finally  recovered  judgment 
on  the  merits  for  a  restoration  of  the  premises,  and  dismissing  the 
complaint  in  the  action  of  ejectment,  whereupon  Wheeler  gave  up 
the  possession  to  Haley.  This  judgment  \vas  afterward  set  aside 
and  a  new  trial  granted,  whereupon  Haley  again  recovered  judg- 
ment, dismissing  the  complaint  and  for  a  restoration  of  the  prem- 
ises, and  a  writ  of  possession  was  issued  on  this  last  judgment, 
whereupon  Haley,  then  being  in  the  actual  possession  by  the  vol- 
untary surrender  of  Wheeler,  was  put  into  formal  possession  by  the 
sheriff  under  the  writ  of  possession.  The  trespasses  complained  of 
were  for  mowing  and  cutting  the  grass,  rye  and  corn  of  the  plain- 
tiff and  gathering  the  fruit,  during  the  time  that  Wheeler  was  in 
possession  of  the  premises  under  the  first  recovery.  The  defendant 
moved  for  a  nonsuit,  on  the  ground  that  no  cause  of  action  was 
shown  by  the  plaintiff,  and  on  the  ground  that  title  to  land  came 
in  question.  The  cause  of  action  was  sufficiently  made  out.  The 
first  recovery  in  ejectment,  being  set  aside  and  vacated,  became  of 
no  force  and  effect  from  the  beginning.  The  general  proposition 
that  an  action  of  trespass  quare  clausum  freyit  can  be  sustained 
only  by  the  person  who  has  the  actual  possession  when  the  injury 
was  committed  is  doubtless  correct.  But  in  the  case  of  a  disseisin 
the  disseisee,  after  he  has  regained  possession  by  re-entry,  may 
maintain  trespass  against  the  disseisor  for  acts  intermediate  the 
disseisin  and  re-entry.  For  this  doctrine  the  case  of  Dewey  v. 
Osborn  (4  Cow.,  329)  is  a  very  distinct  authority.  The  title  did 
not  come  in  question  so  as  to  oust  the  justice  of  jurisdiction.  The 
recovery  of  the  final  judgment  in  favor  of  Haley  against  Wheeler 
was  conclusive  of  the  title  between  these  parties,  and,  as  between 


VILLAGE  OF  SENECA  FALLS  v.  ZALINSKI.         571 
FOURTH  DEPARTMENT,  OCTOBER  TERM,  1876. 

them,   the   defendant   could   not   question   the  title.     (Iceland  v, 
Tousey,  6  Hill,  328;  Van  Ahtine  v.  McCarty,  51  Barb.,  326.) 

The  judgment  of  the  County  Court  and  the  order  denying  a  new 
trial  are  affirmed. 

Present  —  MULLIN,  P.  J.,  SMITH  and  TALOOTT,  JJ. 

Judgment   of  County  Court   and   order   denying  a  new  trial 
affirmed. 


THE   VILLAGE    OF    SENECA   FALLS,    PLAINTIFF,    v. 
MICHAEL  I.  G.   ZALINSKI,   DEFENDANT. 

Obstruction  of  streets — License  from  corpora  (on,  when  presumed — Injury  to  trav- 
eler —  liability  of  party  causing  —  bound  by  judgment  against  corporation. 

The  fact  that  a  party  constructing  a  building  deposits  materials  therefor  in  the 
street  and  keeps  them  there  during  the  erection  of  the  building,  with  the  full 
knowledge  of  the  trustees  and  superintendent  of  the  village,  is  sufficient  to 
imply  a  consent  on  the  part  of  the  village  authority  to  such  use  of  the  street. 

It  does  not  create  a  nuisance  to  deposit  such  materials  in  the  street,  if  they  are 
properly  guarded. 

Where  a  party  is  authorized  by  the  corporate  authority  to  deposit  building  mate- 
rials in  a  public  street,  it  is  his  duty  to  see  that  proper  guards  or  lights  are 
erected  and  maintained  during  the  night  so  that  travelers  may  not  be  exposed 
to  injury  thereby. 

The  corporation  may  maintain  an  action  against  such  person,  to  recover  the 
amount  of  a  judgment  which  it  has  been  compelled  to  pay,  to  one  who  waa 
injured  in  consequence  of  his  failure  to  erect  and  maintain  proper  guards  or 
lights  by  such  obstructions. 

Where  he  has  been  notified  of  the  pend.'i  cy  of  an  action  against  the  corporation, 
the  judgment  recovered  thereon  is  conclusive  against  him  so  far  as  relates  to 
the  cause  of  action,  the  amount  of  damages,  and  the  other  matters  necessarily 
involved  therein. 

MOTION  for  a  new  trial  on  exceptions  ordered  to  be  heard  in  the 
first  instance  at  the  General  Term,  after  an  order  nonsuiting  the 
plaintiff. 

The  action  was  brought  to  recover  the  amount  of  a  judgment 
which  the  plaintiff  had  been  compelled  to  pay  to  one  Benrath,  for 
injuries  sustained  by  him  on  account  of  obstructions  placed  by  the 


572         VILLAGE  OF  SENECA  FALLS  v.  ZALINSKI. 

FOUBTH  DEPARTMENT,  OCTOBER  TERM,  1876. 

defendant  in  Fall  street,  in  the  village  of  Seneca  Falls.  The 
obstructions  consisted  of  building  materials,  deposited  in  the  street 
by  the  defendant,  while  engaged  in  erecting  buildings  upon  the 
adjoining  lots,  which  were  owned  by  him.  Benrath  was  injured  by 
running  against  the  same  on  a  dark  night,  there  being  at  the  time 
no  light  or  guard  in  the  neighborhood  of  the  materials.  Notice  was 
given  to  the  defendant  in  this  action  of  the  suit  commenced  against 
the  village  by  Benrath,  in  which  the  judgment  was  recovered. 

P.  H.  Van  Auken,  for  the  plaintiff.  The  rule  is  well  settled, 
that  where  a  party  is  injured  by  reason  of  any  obstructions  or 
defects  in  a  public  street,  placed,  made  or  continued  by  any  person, 
and  the  municipal  corporation  is  compelled  to  pay  the  damage  sus- 
tained by  the  party  injured,  the  corporation  has  a  remedy  over 
against  the  person  so  making  or  continuing  such  obstructions  or 
defects  for  the  amount  so  paid.  (  Wilson  v.  City  of  Watertown,  3 
Hun,  514 ;  City  of  Chicago  v.  Robbins,  2  Black.,  418  ;  Inhabitants 
of  Woburn  v.  Henshaw,  101  Mass.,  193  ;  Inhabitants  of  Stoughton 
v.  Porter,  13  Allen,  191 ;  Inhabitants  of  Milford  v.  Rolbrook,  9 
id.,  18 ;  City  of  Lowell  v.  B.  and  L.  R.  R.  Corp.,  23  Pick.,  24; 
City  of  Lowell  v.  Spaulding,  4  Cush.,  277.)  The  record  of  the 
judgment  in  the  action  of  Benrath  against  the  village  was  compe- 
tent evidence  against  the  defendant,  and  conclusively  showed  that 
the  obstructions  placed  or  continued  in  the  street  by  the  defendant 
rendered  the  street  unsafe  and  dangerous  for  the  use  of  the  public ; 
that  the  plaintiff  in  that  action  was  not  chargeable  with  any  con- 
tributory negligence  precluding  his  right  of  recovery,  and  of  the 
amount  that  the  plaintiff  was  entitled  to  recover  of  the  defendant. 
(Mayor,  etc.,  of  Troy  v.  The  Troy  and  Lansingburgh  R.  R.  Co., 
49  K  Y.,  657 ;  City  of  Boston  v.  Worthington,  10  Gray,  496.) 

Miller  &  Hardley,  for  the  defendant.  If  the  village  licensed 
the  defendant  to  place  the  obstruction  in  the  street,  it  cannot 
recover.  A  license  is  a  perfect  defense.  ( Walter  v.  Post,  6 
Dner,  363;  MilZer  v.  A.  and  S.  R.  R.  Co.,  6  Hill,  61.) 
Having  given  the  license,  the  village  is  in  pari  delicto  with 
the  defendant,  and  for  that  reason  cannot  recover.  It  can 
have  neither  indemnity  nor  contribution.  (City  of  Brooklyn  r 


VILLAGE  OF  SENECA  FALLS  o.  ZALINSKI.         573 

FOURTH  DEPARTMENT,  OCTOBER  TERM,  1876. 

Brooklyn  City  R.  R.,  47  K  Y.,  486,  487 ;  Shearman  &  Kedfield 
on  Neg.,  §  419,  p.  476,  and  cases  cited  ;  Boston  v.  Worthingtonl 
10  Gray,  496 ;  Wendell  v.  Troy,  39  Barb.,  329.)  Having  given 
license,  the  village  must  protect  itself  by  a  contract.  (City  of 
Brooklyn  v.  Brooklyn  City  It.  R.,  47  N.  Y.,  475 ;  Troy  v.  Troy 
and  L.  R.  R.  Co.,  49  id.,  657;  2  Dillon  on  Munic.  Corp.,  § 
582.)  If  the  village  did  not  license  the  defendant  it  could  not 
recover,  because  it  was  the  duty  of  the  village  authorities  them- 
selves to  remove  the  obstructions  and  abate  the  nuisance.  (Charter 
of  Seneca  Falls,  Laws  of  1865,  chap.  543,  §§  18,  19  ;  Thompson  on 
Highways,  76 ;  Wendell  v.  Troy,  39  Barb.,  329.)  As  a  corpora- 
tion may  be  compelled  to  pay  damages  caused  by  the  negligent 
manner  in  which  persons  occupy  or  use  streets  with  building  mate- 
rial, it  may  impose  reasonable  conditions  on  those  who  wish  thus  to 
occupy  the  streets;  for  example,  require  them  by  ordinance  to  give 
bonds  of  indemnity.  It  would  seem  it  must  protect  itself  thus. 
And  the  village  has  power  to  pass  an  ordinance  regulating  these 
matters.  (2  Dillon  on  Munic.  Corp.,  §§  582,  583,  584.)  Having 
done  that,  it  can  only  enforce  the  ordinance.  (Flynn  v.  Canton 
Co.,  40  Md.,  312;  Kirly  v.  Boylston  Market  Ass.,  14  Gray,  249; 
Vandyke  v.  Cincinnati  and  Harberon,  1  Disney,  532 ;  Admr.  of 
Chambers  v.  Ohio  Life  and  Trust  Co.,  id.,  327;  13  Alb.  Law 
Jour.,  321.) 

£.  DARWIN  SMITH,  J. : 

Under  the  evidence  given  at  the  trial  the  jury  would  have  been 
warranted  in  finding,  and  I  think  bound  to  find,  that  the  obstruc- 
tions placed  in  the  street  by  the  defendant  were  by  or  under  a 
license  from  the  authorities  of  the  village. 

The  defendant  testified  that  he  and  a  Mr.  Disky,  who  was  build- 
ing adjacent  to  him,  went  together  to  the  office  of  the  president  of 
the  village  and  asked  for  the  privilege  to  unload  the  materials  in 
the  street  for  the  buildings  they  proposed  to  erect,  and  he  said 
"yes;  it  is  all  right;  you  can  do  so."  Mr.  Disky  testified  to  the 
game  interview  and  conversation.  But  aside  from  this  evidence, 
the  fact  that  the  defendant  and  said  Disky  did  in  fact  deposit  the 
materials  used  in  erecting  their  said  buildings  in  the  street,  and 
kept  them  there  more  or  less  through  the  whole  summer  of  1872 


574        VILLAGE  OP  SENECA  FALLS  v.  ZALINSKL 
FOUKTH  DEPARTMENT,  OCTOBER  TERM,  1876. 


while  engaged  in  erecting  said  buildings,  with  the  full  knowledge 
of  the  trustees  and  superintendent  of  said  village,  was  sufficient  evi- 
dence upon  which  to  imply  a  consent  on  the  part  of  the  village 
authorities  to  such  use  of  the  street. 

Such  license  relieved  the  defendant  from  a  liability  to  indictment 
or  other  prosecution  for  obstructing  said  street,  but  could  not  be 
considered  as  authorizing  him  to  erect  and  maintain  a  nuisance 
therein. 

It  was  not  a  nuisance  to  deposit  such  materials  in  the  street,  pro- 
vided they  were  properly  guarded,  so  that  persons  traveling  said 
street  were  exposed  to  no  unnecessary  obstacles  to  the  free  passage 
.thereof,  or  to  any  unreasonable  peril. 

Municipal  corporations  are  bound  to  keep  their  streets  in  a  safe 
condition  for  travel,  and  are  liable  to  respond  in  damages  to  any 
person  receiving  a  special  injury  from  their  neglect  of  this  duty. 
Where  streets  in  a  city  or  village  are  used,  as  in  this  case,  for  the 
deposit  of  materials  by  the  adjoining  proprietor  for  building  pur- 
poses, or  dug  up  for  the  construction  of  sewers,  the  laying  of  water 
or  gas  pipes,  or  for  other  improvements  by  the  corporation  or  by 
the  adjoining  owner,  the  corporation  is  bound  to  see  to  it  that 
proper  guards,  or  lights  by  night,  be  erected  and  maintained 
around  such  excavations  or  obstructions,  so  that  travelers  be  not 
exposed  to  injury.  (Storrs  v.  The  City  of  Utica,  17  N".  Y.,  104.) 

The  obstructions  in  this  case,  put  in  the  street  by  the  defendant, 
were  not  thus  guarded  in  the  night,  when  Benrath  received  the 
injury  for  which  he  recovered  in  an  action  against  the  plaintiff. 
That  recovery  was  therefore  apparently  proper.  The  license  which 
the  defendant  received  from  the  plaintiff  to  place  such  obstruction 
in  the  street,  did  not,  as  above  stated,  entitle  him  to  create  a  nui- 
sance in  such  street.  The  nuisance  which  gave  a  ground  of  action 
was  the  omission  to  place  and  maintain  guards,  or  lights,  around 
such  deposits  by  night.  It  was  the  duty,  I  think,  of  the  defend- 
ant to  place  such  guards,  or  lights,  around  the  obstructions  by  him 
placed  in  said  street.  He  took  the  leave  or  license  from  the  plain- 
tiff to  use  the  street  for  his  private  benefit,  upon  the  implied  agree- 
ment on  his  part  that  the  city  should  be  protected  by  him  against 
loss  or  damages  by  reason  of  the  obstructions  to  be  by  him  to 
placed  in  said  street. 


VILLAGE  OF  SENECA  FALLS  v.  ZALINSKL         575 

FOURTH  DEPARTMENT,  OCTOBER  TERM,  1876. 

He  impliedly  undertook  that  he  would  erect  no  nuisance  in  the 
street ;  that  he  would  so  guard  the  obstructions  to  be  placed  by 
him  thereon  that  no  injury  should  ensue  to  or  be  suffered  by  any 
one  traveling  such  street.  This  doctrine  is  asserted  in  the  case  of 
The  City  of  Chicago  v.  Rollins  (2  Black  [U.  S.],  418),  which  case 
is  quite  parallel  with  this. 

In  that  case  .Bobbins  was  the  owner  of  a  lot  on  one  of  the  pub 
lie  streets  of  the  city,  and  excavated  in  the  sidewalk,  next  to  and 
adjoining  his  lot,  an  area  of  considerable  length  and  breadth,  and 
suffered  the  same  to  remain  uncovered  and  unguarded  so  that,  in 
the  night,  a  person  passing  along  said  street,  ft1!  into  it  and  was 
injured ;  for  which  injury  he  sued  the  city,  and  recovered  a  judg- 
ment for  $15,000  and  costs,  which  was  paid  by  the  city ;  and  the 
city  then  sued  Robbing  to  recover  the  amount  thus  paid. 

On  the  trial,  evidence  was  given  to  show  th^t  the  city  authori- 
ties knew  of  the  excavation  of  the  area,  and  others  similar,  and 
interposed  no  objection  to  the  same,  though  no  express  permission 
to  make  this  one  was  given. 

It  was  held,  that  though  the  city  was  liable  to  the  party  injured 
for  the  damages  sustained  by  him,  the  corporation  had  a  remedy 
over  against  the  party  that  was  in  fault  and  had  so  used  the  street 
as  to  produce  the  injury,  and  that  the  defendant  Robbing  having 
had  notice  of  the  pendency  of  the  suit,  was  concluded  by  the 
judgment. 

In  the  opinion  of  Justice  DAVIS,  who  gave  the  opinion  of  the 
court,  he  said  :  "  Without  M:I  expross  ;>•  rmission  from  the  city,  but 
under  an  implied  license,  he  (the  defendant)  makes  the  area ;  no 
license  can  be  presumed  from  the  city  to  leave  the  area  open  even 
for  a  single  night.  The  privilege  extended  to  Bobbins  was  for  his 
benefit  alone,  and  the  city  derived  no  advantage  from  it  except 
incidentally.  Robbing  impliedly  agreed  with  the  city  that  if  he 
was  permitted  to  dig  the  area  for  his  own  benefit,  he  would  do  it 
in  such  a  manner  as  to  save  the  public  from  danger  and  the  city 
from  harm." 

This  case  was  retried  and  came  back  for  review  to  the  Supreme 
Court,  where  it  is  again  considered  and  reported  with  the  title 
reversed — Bobbins  v.  The  City  of  Chicago  —  in  4  Wallace,  fi57 
where  the  same  doctrine  is  reasserted. 


57G         VILLAGE  OF  SENECA  FALLS  v.  ZALINSKL 
FOURTH  DEPARTMENT,  OCTOBER  TERM.  1876. 

This  same  doctrine  is  also  asserted  in  Stoughton  v.  Porter  (13 
Allen,  191);  Boston  v.  Worthington  (10  Gray,  496);  Lowell  v. 
B.  and  L.  R.  R.  Co.  (23  Pick.,  24),  and  Woburn  v.  Henshaw  (101 
Mass.,  193),  which  cases,  as  well  as  the  above  case  of  Robbint 
\.  City  of  Chicago,  as  Judge  FOLGEB  stated  in  The  City  of  Brook- 
lyn v.  Brooklyn  City  R.  R.  Co.  (47  N.  Y.,  481),  were  recognized 
and  approved  in  The  Mayor,  etc.,  of  Troy  v.  The  Troy  and  C.  R. 
R.  Co.,  decided  in  April,  1872  (Ct.  of  Appeals). 

The  case  referred  to  by  Judge  FOLGEB  is  reported  in  the  memo- 
randa at  the  end  of  volume  49  New  York,  657. 

In  the  case  of  The  City  of  Brooklyn  v.  The  Brooklyn  R.  R.  Co. 
the  case  was  put  upon  the  ground  of  an  express  contract  which 
existed  in  the  case ;  and  in  the  case  of  The  Mayor  of  Troy  v.  Troy 
and  C.  R.  R.  Co.  the  brief  report  of  the  case  states  that  the  rail- 
road company  accepted  a  license  to  lay  its  track  upon  and  through 
certain  streets,  upon  condition  that  it  should  keep  the  same  in  repair. 

The  question  whether  a  contract,  not  to  commit  any  nuisance  to 
the  injury  of  the  public  or  the  municipal  corporation,  will  be 
implied  from  the  acceptance  of  a  license  to  use  a  street  for  the  pri- 
vate benefit  of  the  part}7  asking  for  and  receiving  such  license  was 
not  distinctly  decided,  but  I  cannot  see  how  the  court  could  have 
recognized  and  approved  the  principles  asserted  in  the  case  of  the 
City  of  Chicago  v.  Robbins,  and  the  other  cases  above  mentioned, 
upon  any  other  ground.  The  notice  to  the  defendant  of  the  com- 
mencement of  the  suit  against  the  plaintiff  by  Bennett,  was  clearly 
sufficient  to  charge  the  defendant  in  this  action  with  the  duty  to 
defend  said  action,  and  to  make  the  judgment  conclusive  against 
him  within  the  same  cases,  so  far  as  relates  to  the  cause  of  action 
and  the  amount  of  damages  and  the  matters  necessarily  included  in 
the  adjudication.  The  question  whether  the  plaintiff  in  that  action 
was  injured  by  obstructions  put  in  the  street  by  the  defendant  or 
some  other  party,  was  a  question  for  the  jury. 

The  nonsuit,  we  think,  was  erroneously  granted,  and  the  motion 
for  a  new  trial  should  be  granted,  with  costs  to  abide  the  event. 

Present  —  MULLIN,  P.  J.,  SMITH  and  TALCOTT,  J J. 
New  trial  granted,  with  costs  to  abide  event. 


PEOPLE  EX  BEL.  BABCOCK  v.  MURRAY.  577 

FOURTH  DEPARTMENT,  OCTOBER  TERM,  1876. 


THE  PEOPLE  OF  THE  STATE  OF  NEW  YORK  EX  RBL. 
JEPTHA  W.  BABCOCK  AND  OTHERS,  RESPONDENTS,  v.  JOHN" 
T.  MURRAY,  THOMAS  CLEMENT  AND  OLIVER  0. 
WRIGHT,  APPELLANTS. 

Quo  warranio —  Commissioners  of  excise  —  Several  persons,  claiming  to  constitute  A 

board,  united  as  relators. 

In  an  action  by  the  people  on  the  relation  of  three  persons,  claiming  to  constitute 
a  board  of  excise,  against  three  others  whom  they  allege  have  usurped  the  said 
office,  it  is  not  necessary  to  allege  or  prove  that  any  one  of  the  relators  is  enti- 
tled to  the  office  occupied  or  claimed  by  any  one  of  the  defendants;  the  object 
of  such  action  is  to  determine  which  set  of  persons  lawfully  compose  or  is 
entitled  to  compose  the  board  of  excise. 

APPEAL  from  a  judgment  in  favor  of  the  plaintiff,  entered  upon 
the  trial  of  this  action  by  the  court  without  a  jury. 

This  is  an  action  of  quo  warranto,  the  relators  alleging  that  they 
had  been  duly  appointed  commissioners  of  excise  of  the  city  of 
Lockport,  and  that  the  defendants  have  unlawfully  usurped  the 
same.  The  action  has  already  been  before  the  General  Term,  the 
decision  being  reported  in  12  S.  C.  N.  Y.  (5  Hun),  at  page  42. 

Geo.  G.  Greene,  for  the  appellants. 

Holmes,  Fitts  <&  Chi/pmariy  for  the  respondent. 

E.  DABWIN  SMITH,  J. : 

W  hen  this  case  was  before  us  on  a  former  occasion,  we  held  that 
the  relators  were  legally  appointed  commissioners  of  excise,  etc., 
and  see  no  reason  for  reconsidering  that  question.  The  decision 
then  made  appears  to  have  been  properly  followed  at  the  circuit  on 
the  retrial  of  the  cause,  and  we  must  affirm  the  judgment  there 
rendered  unless  there  are  some  new  questions  not  previously  con- 
sidered, which  require  us  to  come  to  another  conclusion.  (  Vid« 
S.  C.,  12  S.  C.  N.  Y.  [5  Hun],  42.) 

At  the  close  of  the  plaintiffs'  case,  it  appears  that  a  motion  for  a 
nonsuit  was  made,  among  others,  upon  the  ground  that  it  is  not 
alleged  or  proved  that  either  plaintiff  is  entitled  to  the  office  occu- 
HUN— VOL  VIII.  73 


578  PEOPLE  EX  BEL.  BABCOCK  v.  MURRAY. 

FOUBTH  DEPARTMENT,  OCTOBER  TERM,  1876. 

pied  or  claimed  by  any  one  of  the  defendants.  That  no  one  of  the 
relators  claims,  specifically,  the  office  of  either  defendant.  That 
several  claimants  of  several  and  distinct  offices  cannot  unite  in, 
and  maintain  an  action  as  plaintiffs  against  several  other  claim- 
ants of  such  several  distinct  offices.  The  motion  for  a  nonsuit 
was  denied,  and  the  point  thus  presented  for  the  first  time  in  th« 
progress  of  the  cause,  that  several  causes  of  action  had  beeu 
improperly  united,  was  overruled,  upon  the  ground  that  the  question 
not  having  been  raised  by  demurrer  or  answer  was  therefore  waived 
under  sections  144,  147  and  148  of  the  Code. 

If  the  nonsuit  were  not  properly  denied  so  Var  as  relates  to  thie 
point,  upon  the  ground  stated  by  the  Circuit  judge,  I  think  it  was 
not  a  valid  objection,  upon  the  merits,  to  the  proceeding  in  the 
action,  upon  the  other  ground  that  the  action  was  in  behalf  of  the 
people  to  try  the  title  of  the  three  relators  to  the  office  claimed 
and  occupied  by  the  defendants,  each  set  composing  or  claiming 
the  legal  right  to  compose  a  board  of  excise  for  said  ci'-y  of  Lock- 
port. 

The  argument  of  the  defendants'  counsel,  that  neither  of  the 
relators  was  appointed  in  the  place  of  any  one  of  the  defendants, 
shows  that  the  judgment  asked  by  the  relators  was  a  proper  judg- 
ment in  their  favor,  against  all  three  of  the  defendants  together, 
as  usurping  the  said  office  as  members  of  such  board  of  excise. 

The  relators  were  all  appointed  in  the  same  manner  to  compose 
a  board  of  excise.  Neither  of  them  was  appointed  in  the  place  of 
either  of  the  defendants,  and  there  could  not  for  that  reason  have 
been  a  separate  judgment  for  either  relator,  as  against  either  of  the 
defendants.  The  action  was  therefore  properly  brought  in  the 
name  of  the  people,  in  behalf  of  the  three  relators,  against  the 
three  defendants,  to  determine  which  set  of  these  persons  claiming 
title  to  the  said  office  lawfully  composed,  or  were  entitled  to  com- 
pose a  board  of  excise  for  said  city. 

The  statute  (chap.  175,  Sess.  Laws,  1870)  directs  the  appointment 
of  three  persons  at  the  same  time,  as  a  board  of  commissioners  of 
excise,  for  each  of  the  cities  and  villages  of  the  State,  to  hold  for 
three  years.  The  term  begins  and  ends  at  the  same  time,  except 
in  the  case  of  a  vacancy,  and  the  officer  in  such  case  would  hold  till 
the  end  of  the  term  only. 


BORDEAUX  v.  ERIE  RAILWAY  CO.  579 

FOURTH  DEPARTMENT,  OCTOBER  TERM,  1876. 

The  principle  asserted  in  the  case  of  The  People  v.  Jones  (17 
Wend.,  81),  and  reaffirmed  in  the  Matter  of  the  Union  Insurance 
Co.  (22  id.,  600),  sustains  the  view  that  the  office  of  the  defendants 
all  expired  together,  and  that  neither  of  them  had  a»y  right  to  act 
as  commissioner  of  excise  after  the  appointment  of  the  relators. 

We  think  the  proper  judgment  was  rendered  at  the  Circuit,  and 
that  the  same  should  be  affirmed. 

Present  —  MULLIN,  P.  J.  SMITH  and  TALOOTT,  JJ. 
Judgment  affirmed  with  costs. 


JOHN  BORDEAUX,  RESPONDENT,  v.  THE  ERIE  RAILWAY 
COMPANY,  APPELLANT. 

The  Erie  Railway  Company  —  no  obligation  to  keep  open  its  ticket  offices — Fare  — 
payment  of,  at  office  or  to  conductor  —  different  rates. 

Under  section  14  of  chapter  224  of  1832,  authorizing  the  Erie  Railway  Company 
"to  fix,  regulate  and  receive  the  tolls  and  charges  by  them  to  be  received  for 
the  transportation  of  property  or  persons,"  it  may  establish  two  rates  of  fare, 
discriminating  between  the  cases  where  the  ticket  is  purchased  of  a  conductor 
upon  a  train,  and  where  it  is  purchased  at  a  ticket  office. 

The  company  is  not  bound  to  keep  its  ticket  offices  open  at  or  for  any  particular 
time,  and  the  fact  that  a  passenger  is  unable  to  procure  a  ticket  in  consequence 
of  the  office  being  shut,  will  not  entitle  him  to  be  carried  to  his  place  of  desti- 
nation upon  payment  of  the  amount  for  which  he  could  have  procured  a 
ticket  at  the  office  had  it  been  open. 

APPEAL  from  a  judgment  of  the  County  Court  of  Cattaraugua 
county  in  favor  of  the  plaintiff. 

The  action  was  brought  to  recover  damages  occasioned  by  the 
ejection  of  the  plaintiff  from  the  defendant's  cars,  upon  his  refusal 
to  pay  the  fare  demanded  of  him  by  the  conductor. 

The  plaintiff,  on  the  5th  day  of  July,  1874,  was  in  Olean  wishing 
to  go  to  Salamanca.  The  defendant's  road  connects  these  places, 
and  the  defendant  has  a  depot  and  ticket  office  at  Olean.  The 
train  was  due  at  the  depot  in  Olean  about  half-past  nine  P.  M. 
The  plaintiff  got  to  the  depot  from  ten  to  fifteen  minutes  before 
the  train  started.  The  ticket  office  was  then  closed,  but  the  sitting 
room  was  open.  Plaintiff  went  on  the  train  for  a  few  moments, 


580  BORDEAUX  v.  ERIE  RAILWAY  CO. 

FOURTH  DEPARTMENT,  OCTOBER  TERM,  1876. 

then  went  back  to  the  ticket  office;  there  was  no  one  there,  and  he 
could  not  get  a  ticket.  He  then  went  on  the  platform,  heard  the 
conductor  say  all  aboard,  and  got  aboard.  The  conductor  wanted 
his  ticket.  He  told  him  he  had  none ;  that  he  had  gone  to  the 
office  three  times  and  could  not  get  a  ticket.  The  plaintiff  offered 
him  sixty  cents,  which  he  would  not  accept,  and  asked  plaintiff  to 
pay  him  eighty  cents,  and  told  him  if  he  did  not  pay  eighty  cents 
he  would  put  him  off  the  train.  The  distance  is  about  twenty 
miles.  The  conductor  informed  the  plaintiff  that  his  ordeis  were 
to  take  eighty  cents,  and  that  unless  that  amount  was  paid  he 
should  put  the  plaintiff  off ;  and  he  did  accordingly  remove  him 
from  the  train. 

E.  C.  Sprague,  for  the  appellant. 
Ansley  <&  Vreeland,  for  the  respondent. 

E.  DABWE*  SMITH,  J. : 

The  defendant  acquired  its  corporate  rights  under  special  acts  of 
the  legislature.  (  Vide  Session  Laws  of  1832,  chap.  224,  p.  402,  and 
id.,  1860,  chap.  160,  p.  255.)  Under  section  14  of  the  act  of  1832 
the  defendants  were  authorized  "  to  fix,  regulate  and  receive  the 
tolls  and  charges  by  them  to  be  received  for  the  transportation  of 
property  or  persons"  on  their  railroad.  The  defendants,  accord- 
ingly, had  fixed  two  rates  of  fare  on  their  said  railroad,  between 
the  villages  of  Olean  and  Salamanca  ;  one  rate  of  eighty  cents, 
with  a  rebate  of  fifteen  cents  at  the  end  of  the  route  when  the  fare 
was  paid  to  the  conductor  on  the  train ;  and  another  rate  of  sixty 
cents  when  the  fare  was  paid  in  the  purchase  of  a  ticket  at  any  of 
their  offices  for  the  sale  of  tickets. 

The  defendants  had  a  clear  right  to  fix  two  rates  of  fare,  dis- 
criminating between  the  case  where  the  fare  was  paid  to  their  con- 
ductors on  their  trains,  and  where  it  was  paid  at  a  collection  office 
for  the  sale  of  tickets.  (1  Redfield  on  Railways,  112,  §§  26,  28  ; 
ffilliard  v.  Goold,  34  N.  Hamp.,  230 ;  State  v.  Goold,  53  Maine, 
279  ;  Stephen  v.  Smith,  29  Vermont,  160.) 

In  some  of  the  cases  where  the  question  of  this  discrimination 
between  fares  paid  in  the  purchase  of  tickets  and  fares  paid  to  the 
conductors  of  trains  has  been  considered,  its  lawfulness  was  held 


BORDEAUX  v.  ERIE  RAILWAY  CO.  581 

FOTTRTH  DEPARTMENT,  OCTOBER  TERM,  1876. 

to  depend  upon  the  question  whether  the  passenger  who  was 
required  to  pay  the  higher  fare  to  the  conductor,  had  been  unable 
to  procure  a  ticket  at  a  ticket  office,  without  fault  or  neglect  on  his 
part. 

The  rule  is  asserted  in  this  way  in  the  case  of  Jeffersonville  R. 
R.  v.  Rogers  (38  Indiana,  116 ;  10  Am.  Rep.,  103). 

In  that  case  the  plaintiff  applied  at  the  proper  office  to  purchase 
a  ticket  from  Indianapolis  to  Columbus,  and  was  informed  by  the 
ticket  agent  that  he  had  no  ticket  to  Columbus.  The  court  held 
that  the  plaintiff  was  entitled  to  r/de  upon  the  ticket  fare,  upon  the 
payment  or  tender  of  that  sum  to  the  conductor.  The  same  rule 
was  asserted  in  The  Chicago,  Burlington  and  Quincy  Railroad  v. 
Park  (18  Illinois,  460),  and  perhaps  in  some  other  cases  in  that 
State. 

In  these  cases  the  question  is  not  discussed  upon  principle  ;  and 
I  can  hardly  conceive  upon  crhat  principle  they  rest.  The  decisions 
may  be  correct  under  particular  statutes  in  those  States,  or  under 
the  particular  mode  or  ;? rms  in  which  the  fares  may  have  been 
fixed  or  established 

The  rule  asserted  in  fchese  cases  is,  in  substance,  that  applied  in 
this  State,  under  express  legislation,  in  respect  to  the  Xew  York 
Central  Railroad  Coirpany,  as  asserted  in  Sorter  v.  said  company 
(34  Barb.,  353) ;  fltttis  v.  Same  (30  N.  Y.,  505) ;  Chase  v.  Same 
(26  id.,  523).  Tbeee  cases  were  all  actions  for  a  penalty  given  by 
statute  for  taking  rllegal  fares.  The  legal  fare  tixed  by  the  statute 
for  said  railroad  rompany  is  two  cents  a  mile.  A  special  statute 
allowed  said  corrpany  to  require  the  payment  of  five  cents  in  addi- 
tion to  such  fo'e,  of  any  passenger  who  entered  the  cars  without 
first  having  purchased  a  ticket  for  that  purpose,  at  any  station 
wheie  a  ticVet  office  is  established  and  open;  and  said  statute 
required  the  said  company  should  keep  the  said  office  open  at  least 
one  hour  pHor  to  the  departure  of  each  passenger  train  from  such 
station.  ( Vide  Laws  of  1857,  chap.  228,  p.  488.)  But  there  is 
no  such  statute  relating  to  the  Erie  Railway  ;  and  the  charge  of  five 
cents,  rr/quired  where  the  fare  is  paid  to  the  conductor,  is  not  an 
enhancement  of  the  legal  fare,  but  is  within  the  limit  of  such  fare. 
On  the  contrary,  the  price  of  tickets  sold  at  the  office,  is  an  abate- 
*,  of  the  legal  fare  as  fixed  where  the  payment  is  made  on  the 


582  BORDEAUX  v.  ERIE  RAILWAF  CO. 

FOURTH  DEPARTMENT,  OCTOBER  TERM,  1876. 

cars.     It  is  rather  a  privilege  of  the  passenger,  and  an  inducement 
to  him  to  purchase  his  ticket  at  some  office  of  the  company  before 
taking  his  seat  in  the  cars,  instead  of  paying  his  fare  to  the  con 
ductor  on  the  train.     (State  v.  Goold,  53  Maine,  282.) 

The  plaintiff  in  this  action  went  to  the  defendant's  depot  on  Sun- 
day night  about  nine  o'clock,  to  take  the  train  to  Salamanca,  and 
found  the  ticket  office  closed,  as  he  testified.  He  failed,  for  that 
reason,  to  get  a  ticket,  and  got  on  to  the  train,  and  when  asked  for 
his  fare  refused  to  pay  the  fare  fixed  for  passengers  paying  the  con- 
ductor on  the  train,  and  claimed  to  pay  the  ticket  price  of  sixty 
cents.  Upon  what  principle  could  he  claim  to  fix  the  price  he 
should  pay  for  his  passage?  The  conductor's  duty  was  to  charge 
him  the  price  fixed,  eighty  cents,  with  the  rebate  of  fifteen.  He 
had  no  ticket.  The  conductor  was  bound  to  exact  the  fare  fixed 
for  such  cases;  he  could  not  take  less  than  sixty-five  cents  without 
disobedience  of  his  instructions  and  without  a  relinquishment  of 
part  of  the  legal  fare. 

How  can  the  plaintiff  base  a  claim  to  dictate  the  fare  he  should 
pay,  upon  his  failure  to  find  the  ticket  office  of  the  defendants 
open  when  he  wished  to  purchase  a  ticket  ?  The  defendant 
was  under  no  legal  duty  to  have  their  office  open  at  that  time,  or 
any  other  particular  time ;  they  had  made  no  contract  with  the 
plaintiff  to  do  so.  They  had  offered  to  carry  him,  in  legal  effect, 
from  Olean  to  Salamanca  for  sixty-five  cents,  paid  to  their  con- 
ductor, with  the  privilege  to  him  to  purchase  a  ticket  at  any  of 
the  offices,  when  open,  for  sixty  cents,  for  such  transportation. 
They  open  their  offices  at  their  own  discretion  and  for  their  own 
convenience  and  interest,  and  cannot  be  compelled  to  open  them 
or  keep  them  open  otherwise,  except  by  act  of  the  legislature. 

The  courts  cannot  say  when,  or  for  how  long  a  time  they  shall 
open  such  offices  each  day  or  otherwise. 

If  the  plaintiff  failed  for  any  cause  to  procure  a  ticket,  he  had  no 
right  to  get  into  the  defendant's  cars,  except  upon  the  implied 
engagement  on  his  part  to  pay  the  fare  fixed  for,  and  required  of 
passengers  without  tickets. 

The  case  is  within  the  rule  and  principles  asserted  in  the  able 
opinion  of  the  court,  in  the  case  of  Crocker  v.  The  New  Londo* 
<md  Palmer  R.  R.  Co.  (24  Conn.,  249). 


BORDEAUX  v.  ERIE  RAILWAY  CO.  583 

FOTJKTH  DEPARTMENT,  OCTOBER  TERM,  1876. 

In  that  case,  as  in  this,  it  appeared  that  the  plaintiff  went  to  the 
defendant's  office,  where  tickets  were  usually  sold,  arid  found  it 
closed,  and  that  he  then  got  into  defendant's  cars  and  claimed  to 
ride  to  the  place  of  his  destination  for  fifty  cents,  the  price  of  the 
rickets  between  the  places  stated  when  sold  at  the  ticket-office,  but 
the  conductor  required  him  to  pay  fifty-five  cents,  the  rate  of  fare 
when  it  was  paid  to  the  conductor  upon  the  train,  which  he  refused 
to  do,  and  suffered  himself  to  be  expelled  from  the  cars  for  his 
refusal  to  pay  such  fare.  It  was  held  by  the  court  that  the  defend- 
ants were  under  no  legal  obligation  to  furnish  tickets  or  carry 
a  passenger  between  the  place  of  his  starting  and  of  his  destination 
for  less  than  fifty-five  cents.  That  the  plaintiff's  claim  to  suck 
passage  rested  entirely  upon  the  assumed  engagement  of  the  defend- 
ants to  furnish  tickets,  or  to  carry  passengers  for  less  than  fifty-five 
cents  each.  That  such  regulation  of  the  defendant  was  not  a  contract 
creating  a  legal  debt  or  duty,  but  a  mere  proposal  which  might  be 
withdrawn  or  suspended  at  pleasure.  That  such  proposal  was 
withdrawn  by  closing  defendants'  office  and  the  retirement  of  their 
agent  therefrom,  and  that  that  proposal  being  thus  withdrawn,  the 
defendants  remained  liable  as  common  carriers  to  carry  the  plaintiff 
for  titty-five  cents  only,  and  that  the  plaintiff  having  refused  to  pay 
such  fare  was  properly  removed  from  the  cars.  This  case  was  pre- 
cisely like  the  one  at  bar,  and  the  logic  of  the  decision  of  the  court 
appears  to  me  to  be  unanswerable. 

The  plaintiff,  rather  than  pay  the  small  sum  of  five  cents  which 
was  required  of  him  by  the  conductor  of  the  train  in  the  clear  dis- 
charge of  his  duty,  preferred  to  invite  and  procure  his  expulsion 
from  the  cars,  and  the  loss  and  inconvenience  thereby  consequently 
involved,  in  order  to  lay  the  basis  of  an  action  against  the  defend- 
ants in  the  assertion  of  a  principle  of  very  small  consequence  to 
himself. 

He  has  had  the  luxury  of  his  lawsuit  also,  and  as  it  not  unfre- 
quently  happens  to  such  martyrs  to  principle,  he  is  destined,  I  fear, 
to  be  disappointed  in  his  hope  of  receiving  the  martyr's  reward. 

The  judgment  should  be  reversed,  with  costs. 

Present  —  MULLIN,  P.  J.,  SMITH  and  TALOOTT,  JJ. 

Judgment  reversed. 


584  PARDEE  v.  WOOD. 


FOUBTH  DEPARTMENT,  OCTOBKK  TERM,  1876. 


CHARLES  PARDEE,  RESPONDENT,  v.  BYRON  A.   WOOD, 

APPELLANT. 

Accord  and  satisfaction  —  what  conttitutet. 

Plaintiff  being  the  owner  of  two  promissory  notes  for  $2,000,  made  by  the  ' 
defendant,  commenced  an  action  thereon,  and  also  commenced  an  action 
against  the  wife  of  the  defendant.  Subsequently  the  plaintiff  received  from 
the  defendant  $1,500  on  the  notes  and  twenty-five  dollars  for  costs  and  gave  to 
defendant  and  wife  a  receipt  "  in  full  of  notes,  agreements  or  claims  of  all 
kinds  against  these  parties,"  it  being  understood  that  "  this  transaction  finishes 
all  suits  or  litigation  against  said  parties  and  all  suits  are  hereby  discontinued," 
defendant  agreeing  to  make  no  claim  for  certain  machinery,  then  held  by  the 
plaintiff  as  collateral  to  an  indebtedness  from  one  Weed.  Held,  that  this  was 
an  accord  and  satisfaction,  and  that  the  plaintiff  could  not  maintain  an  action 
to  recover  the  balance  due  upon  the  notes. 

APPEAL  from  an  order  denying  a  motion  for  a  new  trial,  made 
upon  the  minutes  of  the  justice  before  whom  the  action  was  tried, 
after  a  verdict  in  favor  of  the  plaintiff. 

The  action  was  brought  to  recover  the  amount  due  upon  two 
promissory  notes  given  by  the  defendant.  The  plaintiff  had  pre- 
viously commenced  an  action  against  the  defendant  to  recover  the 
amount  due  upon  these  notes  ($2,000),  and  had  also  commenced  an 
action  against  the  defendant's  wife,  Clementine  M.  Wood.  During 
the  pendency  of  these  actions  a  settlement  was  effected,  by  which 
the  plaintiff  received  $1,500  in  full  of  all  claims  and  demands 
and  twenty-five  dollars  for  the  costs  of  the  actions  then  commenced, 
and  delivered  the  following  receipt  to  the  defendant ; 

"Received,  Skaneateles,  July  15,  1872,  from  Clementine  M. 
Wood  and  Byron  A.  Wood  fifteen  hundred  dollars,  and  twenty-five 
dollars  for  costs,  and  if  the  costs  can  be  settled  for  a  less  sum  than 
twenty-five  dollars,  balance  to  be  given  back,  and  the  fifteen  hun- 
dred dollars  is  in  full  of  notes,  agreements  or  claims  of  all  kinds 
against  these  parties,  and  against  the  estate  of  A.  Wood  &  Son,  in 
bankruptcy,  and  it  is  understood  no  claim  is  to  be  made  for  any 
machinery  in  the  factory  unless  H.  Weed  pays  his  indebtedness  to 
me,  as  per  agreement  of  same. 


PARDEE  v.  WOOD.  585 


FOUBTH  DEPARTMENT,  OCTOBER  TERM,  1876. 


"  It  is  further  understood  and  agreed  this  transaction  finishes  all 
suits  or  litigation  against  said  parties  of  C.  M.  Wood,  B.  A.  Wood 
and  A.  Wood  &  Son's  estate,  and  all  suits  are  hereby  discontinued. 

"  C.  PARDEE." 

This  action  was  subsequently  brought  to  recover  the  balance 
unpaid  upon  the  notes. 

D.  Pratt,  for  the  appellant.  In  order  to  avoid  the  effect  of  the 
settlement  as  an  accord  and  satisfaction,  it  was  incumbent  upon  the 
plaintiff  to  show  that  the  payment  of  the  $1,500  was  made  by 
defendant  upon  a  liquidated  and  admitted  indebtedness,  and  that 
such  payment  was  the  only  benefit  which  he  received  in  the  trans- 
action. There  must  be  no  dispute  as  to  the  amount  due.  (Pal- 
merton  v.  Huxford,  4  Den.,  166 ;  Pierce  v.  Pierce,  25  Barb.,  247  ; 
Longridge  v.  Dorville,  5  B.  &  Aid.,  117 ;  Tuttte  v.  Tuttle,  12 
Mete.,  551.)  If  the  creditor  receives  any  thing  in  addition  to  part 
payment  in  satisfaction  of  the  whole  liability,  which  in  judgment  of 
law  may  be  deemed  a  benefit  to  him,  it  is  a  good  accord  and  satis- 
faction. (Douglass  \.  White,  3  Barb.  Ch.,  621 ;  Hinckley  v.  Arey, 
27  Me.,  362.)  As  if  a  part  be  paid  and  received  in  full  satisfac- 
tion before  the  whole  is  due.  (Brooks  v.  White,  2  Mete.,  283; 
Ooodnow  v.  Smith,  18  Pick.,  414.)  Or  in  a  way  more  beneficial 
to  the  creditors  than  that  prescribed  by  the  contract.  (Sibree  v. 
Tripp,  14  M.  &  M.,  23.) 

Geo.  Barrows,  for  the  respondent. 

E.  DARWIN  SMITH,  J. : 

It  is  undoubtedly  true  that  an  agreement  to  accept  part  of  an 
admitted  debt  in  satisfaction  of  the  whole,  or  the  payment  of  a 
less  sum  after  a  specific  debt  is  due,  in  satisfaction  of  such  debt,  is 
not  sufficient  to  discharge  the  debtor  from  the  payment  of  the 
residue  without  a  release.  But  this  doctrine  will  not,  I  think,  sus- 
tain the  ruling  at  the  Circuit,  that  the  receipt  given  in  evidence 
by  the  defendant,  dated  July,  15,  1872,  was  not  valid  and  effectual 
as  an  accord  and  satisfaction  of  the  plaintiff's  debts  and  claims 
against  the  defendant. 

At  the  time  when  that  receipt  was  given,  the  plaintiff  had  com 
HUN— VOL.  VIII.         74 


586  PARDEE  v.  WOOD. 


FOURTH  DEPARTMENT,  OCTOBER  TERM,  1876. 


menced  an  action  against  the  defendant,  and  also  one  against  his 
wife,  and  such  suits  were  then  pending.  By  the  terms  of  the 
receipt,  these  suits  were  both  discontinued,  and  twenty-five  dollars 
included  in  said  receipt  was  advanced  by  the  said  defendants  to 
pay  the  costs  in  such  suits.  The  receipt  acknowledges  the  pay- 
ment of  $1,500,  in  full,  of  notes,  agreements,  or  claims  of  all 
kinds  against  the  said  parties,  and  that  it  was  understood  that  the 
transaction  finished  all  suits  or  litigation  against  said  parties  of 
C.  M.  "Wood,  B.  A.  Wood  and  A.  Wood  and  son's  estate.  And, 
also,  it  states  that  it  is  understood  that  no  claim  is  to  be  made  for 
any  machinery  in  the  factory  unless  H.  Weed  pays  his  indebted- 
ness to  plaintiff,  as  per  agreement  of  same. 

This  receipt,  I  think,  upon  its  face,  implies  that  it  was  giveu 
upon  a  settlement  and  compromise  of  all  suits  and  disputes,  and 
was  designed  to  be  a  full  and  final  settlement  of  all  controversies, 
causes  of  action  and  litigation  between  the  parties.  It  includes, 
upon  its  face,  a  relinquishment  of  all  claims  on  the  part  of  the  defend- 
ants in  the  said  suits,  then  discontinued,  "  of  all  claims  to  be  made 
by  them  for  any  machinery  in  the  factory  "  therein  referred  to,  in 
addition  to  the  payment  of  the  $1,500.  This  was  a  distinct  con- 
sideration, and  was  sufficient  to  sustain  the  receipt  as  a  final  accord 
and  satisfaction  of  all  matters  in  controversy  between  the  parties. 

In  Douglass  v.  White  (3  Barb.  Ch.,  624),  the  chancellor  said : 
That  "  if  a  debtor,  in  addition  to  the  agreement  to  pay  part  of  the 
debt,  gives  the  creditor  any  thing  which,  in  judgment  of  law,  can 
be  considered  a  benefit,  and  the  creditor  accepts  it  as  a  satisfaction 
:>f  the  whole  liability,  it  is  a  good  accord  and  satisfaction. 

In  Boyd  <£  Suydam  v.  Hitchcock  (20  Johns.,  76),  three  promis- 
sory notes  were  given  by  a  debtor  for  part  of  his  debt,  with  an 
indorsee,  which  were  accepted  in  satisfaction  of  the  debt.  The 
court  neld  that  here  was  a  beneficial  interest  acquired,  and  a  valu- 
able consideration  received  by  the  plaintiff,  and  that  it  was  a  valid 
discharge  on  the  ground  of  accord  and  satisfaction.  To  the  same 
effect  are  the  cases  of  Kellogg  v.  Richards  (14  Wend.,  116) ;  Fris- 
bie  v.  Lained  (21  id.,  450) ;  Howard  v.  Norton  (65  Barb.,  167). 

The  receipt,  we  think,  was  a  perfect  accord  and  satisfaction  of 
plaintiff's  claims,  and  was  so  intended,  and  a  complete  defense  to 
the  action 


BASTABLE  v.  CITY  OF  SYRACUSE.  587 

FOURTH  DEPARTMENT,  OCTOBER  TERM,  1876. 

The   order  denying  a  new  trial  should   be  reversed  and  a  new 
trial  granted,  with  costs  to  abide  the  event. 

Present  —  MTJLLIN,  P.  J.,  SMITH  and  TALCOTT,  JJ. 

Order  reversed  and  new  trial  granted,  with  costs  to  abide  event. 


STEPHEN  BASTABLE,  KESPONDENT,  v.   CITY  OF  SYKA- 
CUSE,  APPELLANT. 

City  —  construction  of  streets — surface  water  —  collection  of  into  one  stream. 

Although  no  action  can  be  maintained  for  the  diversion  from  its  ordinary  course 
of  the  surface  water  arising  from  rains  and  melting  snow,  yet  if  such  water 
be  collected  into  a  single  channel  and  cast  in  a  large  volume  upon  the  land  of 
an  adjacent  owner,  he  may  maintain  an  action  to  recover  the  damages  sus- 
tained thereby. 

In  pursuance  of  an  ordinance  by  the  common  council  of  the  defendant,  a  street 
was  constructed  in  the  city  of  Syracuse,  whereby  the  surface  water  from  a 
large  area,  which  had  formerly  flowed  through  no  well  defined  channels  over 
the  adjoining  low  lands,  was  collected  into  a  single  stream  and  thrown  upon 
the  land  of  the  plaintiff.  Held,  that  he  was  entitled  to  maintain  an  action  to 
recover  the  damages  sustained  thereby. 

APPEAL  from  a  judgment  in  favor  of  the  plaintiff,  entered 'upon 
the  trial  of  this  action  by  the  court  without  a  jury. 

This  action  was  brought  to  recover  damages  sustained  by  the 
plaintiff,  by  reason  of  the  wrongful  diversion  of  surface  water  by 
the  defendant  in  grading  certain  streets  and  making  other  improve- 
ments in  the  city  of  Syracuse,  whereby  such  water  was  conducted 
to  and  turned  upon  certain  premises  of  the  plaintiff. 

Hiscock,  Oifford  &  Doheny,  for  the  appellants.  Liability  for 
damages  cannot  result  from  the  exercise  of  judicial  functions,  and 
especially  this  judicial  authority  in  the  case  of  street  commissioners 
and  city  authorities  has  been  ruled  upon,  and  so  thoroughly  fixed  in 
the  law  of  England  and  of  the  United  States  that  it  would  seem 
there  ought  to  be  no  question  in  the  present  case.  (  Wilson  v. 
Mayw,  etc.,  1  Den.,  595  ;  Mills  v.  City  of  Brooklyn,  32  N.  Y.,  489  ; 


588  BASTABLE  v.  CITY  OF  SYRACUSE. 

FOURTH  DEPARTMENT,  OCTOBER  TERM,  1876. 

Raddijfs  Escrs.  v.  Mayor,  4  id.,  195  ;  1 6  Miss.,  255 ;  Kavanaugh  v. 
City  of  Brooklyn,  38  Barb.,  235  ;  Clark  v.  City  of  Wilmington,  5 
Har.,  243 ;  White  v.  Ta&oo,  27  Miss.,  357 ;  King  v.  Comr.  of  Sewers,  8 
Barn.  &  Cress.,  355  ;  Parks  v.  City  of  Newburyport,  10  Gray 
[Mass.],  28 ;  Smith  v.  City  of  Washington,  20  How.  [U.  S.],  135 ; 
Dillon  on  Mnnic.  Corp.,  §  798.)  City  officers,  by  virtue  of  the 
authority  conferred  by  charter,  lay  out  and  grade  a  system  of 
streets  and  adjust  sewers  and  gutters  as  their  judgment  dictates  is 
best  for  the  general  public.  The  interests  of  the  individual  give 
way  to  the  public  good,  and  whatever  injury  he  receives  is  damnum 
absque  injuria.  (  Wilson  v.  Mayor,  1  Den.,  595 ;  Mills  v.  Brook- 
lyn, 32  N.  Y.,  489 ;  16  Miss.,  255  ;  Kavanaugh  v.  Brooklyn,  38 
Barb.,  234 ;  Govrs.,  etc.,  v.  Plate  Glass  Co.,  Term  Kep.,  794 ;  King 
v.  Com.  of  Sewers,  8  Barn.  &  Cress.,  355.)  As  between  individuals 
there  is  no  liability  against  one  who  so  fills  up  or  grades  his  own 
land  as  to  cause  surface  drainage  to  run  upon  his  neighbor's  land. 
(Goodale  v.  Tuttle,  29  N.  Y.,  466, 467;  Astley  v.  Walcott,  11  Gush., 
193  ;  Luther  v.  Winnshume  Co.,  9  id.,  171 ;  10  Gray,  28 ;  13  id., 
601.)  The  same  rule  especially  applies  as  between  an  individual 
and  a  city.  (Dickinson  v.  City  of  Worcester  [Mass.],  7  Allen,  22  ; 
Gray  v.  Maine  Gen.  R.  R.,  53  Me.,  201 ;  Adams  v.  Walker, 
34  Conn.,  467 ;  Parks  v.  City  of  Newburyport,  10  Gray, 
28 ;  Wagner  v.  L.  1.  R.  R.  Co.,  5  N.  Y.  Sup.  Ct.  Kep.,  164,  and 
reporter's  note  at  the  end  of  the  opinion  of  TALCOTT,  J. ;  Dillon  on 
Munic.  Corp.,  §  798.) 

Geo.  K.  Collins,  for  the  respondent.  The  defendant  was  not 
called  upon  to  provide  means  for  taking  charge  of  this  surface 
water,  nor  wae  it  liable  in  damages  for  results  necessarily  following 
from  laying  out  and  grading  its  streets;  yet,  having  diverted  this 
surface  water,  and  undertaken  to  carry  it  away  in  new  channels,  or 
permitted  its  streets  and  gutters  to  accommodate  this  water  in  its 
progress  to  disburse  itself,  it  was  the  duty  of  the  defendant,  having 
destroyed  the  usual  channels  for  such  water  to  run  in,  to  have  fully 
provided  for  all  water  that  might  naturally  be  expected  to  be 
diverted  into  or  flow  in  its  streets  and  gutters,  and  to  have  pre- 
vented the  same  from  flowing  upon  the  plaintiff,  where  it  had 
never  been  before.  ("Wood's  Law  of  Nuisance,  §§  378,  393,  397, 


BASTABLE  v.  CITY  OF  SYRACUSE.  589 

FOUKTH  DEPARTMENT,  OCTOBER  TERM,  1876. 

399,  and  p.  404 ;  Bellows  v.  Sackett,  15  Barb.,  101,  102 ;  Moran  v. 
McClearns,  63  id.,  185,  196  ;  Roch.  White  Lead  Works  v.  City  of 
Rochester,  3  N.  Y.,  463  ;  Foot  v.  Bronson,  4  Lans.,  47,  50,  51,  52 
Waffle  v.  N.  Y.  C.  R.  R.  Co.,  58  Barb.,  413,  422,  423 ;  10  Alb.  L. 
Jour.,  401,  403  ;  Kaufman  v.  Greesman,  26  Penn.,  407,  409,  414, 
415  ;  Martin  v.  Riddle  [note  to  above],  id..  416  ;  Miller  v.  Lubach, 
47  id.,  154, 155.)  The  defendant  as  a  municipal  corporation  has  no 
greater  exemption  from  liability  than  a  private  person.  (Moran 
v.  McClearns,  63  Barb.,  196 ;  Rochester  White  Lead  Works  v. 
City  of  Rochester,  3  N.  Y.,  463,  465.)  The  defendant  in  this  case 
was  also  guilty  of  negligence  and  unskillfulness  in  the  construction 
of  its  streets  and  gutters,  and  is  liable  for  negligence,  and  for  the 
failure  to  exercise  proper  skill  in  the  construction  of  the  same. 
(Cleinence  v.  City  of  Auburn,  4  Hun,  386,  388  ;  Conrad  v.  Trus- 
tees, etc.,  Ithaca,  16  N.  Y.,  158,  171,  172,  173;  Barton  v.  City  of 
Syracuse,  37  Barb.,  292,  295 ;  McCarthy  v.  City  of  Syracuse,  46 
N.  Y.,  194,  196  ;  10  Alb.  Law  Jour.,  403.) 

E.  DARWIN  SMITH,  J. : 

In  the  charter  of  the  city  of  Syracuse,  the  mayor  and  common 
council  of  the  said  city  are  made  and  constituted  commissioners  of 
highways,  and  are  empowered  "  to  lay  out,  make,  open,  regulate, 
repair  and  improve  highways,  streets,  lanes,  alleys,  bridges,  public 
grounds,  sidewalks,  and  alter,  widen,  straighten  and  discontinue 
the  same  when  they  shall  deem  proper,  subject  to  the  provisions 
of  law." 

The  common  council  of  said  city  had  undoubted  power  to  pro- 
vide for  the  opening,  grading  and  improving  of  University  avenue, 
and  the  adoption  of  an  ordinance  for  this  purpose  was  a  legitimate 
exercise  of  its  legislative  discretion  and  powers. 

No  right  of  action  can  arise  out  of  such  ordinances,  unless  the 
council  exceeded  their  powers,  or  the  agents  of  the  city  intrusted 
with  the  duty  of  carrying  them  into  effect  were  guilty  of  some 
misconduct,  negligence  or  unskillfulness. 

The  power  to  fix  the  grade  of  streets  and  avenues,  and  prescrib- 
ing the  manner  of  improving  them,  in  cities,  includes,  necessarily, 
the  power  to  change  the  surface  of  the  ground,  to  raise  it  when  it 
is  lower  than  the  proposed  grade,  and  cut  it  down  where  it  ii 


590  BASTABLE  v.  CITY  OF  SYRACUSE. 

FOURTH  DEPARTMENT,  OCTOBER  TERM,  1876. 

higher,  and  thus  effect  and  change,  more  or  less,  the  natural  flow  oi 
the  surplus  drainage  of  the  land  affected.  It  is  well  settled  that 
this  consequence,  though  it  may  cause  some  apparent  injury  to 
adjacent  property  owners  upon  the  street  improved,  gives  no  right 
of  action,  but  is  simply  *'  damnum  absque  injuria  /  "  and  that  no 
one  had  such  an  interest  in  mere  surface  water  as  to  interfere  with 
the  public  convenience  and  welfare  in  this  connection.  (  Wilson  v. 
Mayor  of  N.  T.,  1  Den.,  597 ;  Mills  v.  City  of  Brooklyn,  32 
N.  Y.,  496;  Flagg  v.  City  of  Worcester •,  13  Gray,  601 ;  Kava- 
nagh  v.  City  of  Brooklyn,  38  Barb.,  234;  Dillon  on  Munic.  Corp., 
§§  782,  783.)  But  while  no  one  has  any  interest  in  the  ordinary 
flow  of  surface  water,  arising  from  rains  and  melting  snow,  which 
will  sustain  an  action  for  its  diversion,  yet  it  becomes  a  very  dif- 
ferent question  whether  the  collection  of  such  surface  water  into  » 
single  channel,  and  casting  it  in  a  large  volume  upon  an  adjacent 
owner,  may  not  give  a  ground  of  action. 

In  submitting  the  case  to  the  jury,  the  learned  Circuit  judge 
said  to  them,  that  "  if  the  evidence  led  them  to  believe  there  was 
an  interference  with  the  natural  course  of  the  water,  and  interfer- 
ence with  the  surface  water,  so  as  to  cast  unusual  quantities  of  it 
upon  the  land  of  the  plaintiff;  if  they  were  satistied,  in  the  next 
place,  that  the  defendant  authorized  these  acts,  authorized  this 
interference,  then  it  is  liable,  because  it  entered  upon  that  very  act 
which  produced  it." 

The  judge  further  charged,  in  response  to  a  request  of  the 
defendant's  counsel,  "  that  there  must  have  been  negligence  in  the 
construction,  in  the  making  of  the  gutter,  or  the  making  of  the 
street,  in  the  way  the  work  was  done,  to  entitle  the  plaintiff  to 
recover." 

The  counsel  for  the  plaintiff  also  excepted  to  what  the  judge 
had  said  in  his  charge,  "  that  when  the  city  set  about  doing  this 
work,  they  must  see  to  it  that  they  do  not  interfere  with  the  rights 
of  adjoining  owners."  The  judge  said,  in  response,  that  "that  is 
to  be  done  with  the  precipitation  of  surface  water."  The  excep- 
tion to  the  charge  upon  this  branch  of  it  is.  in  substance,  an  excep- 
tion upon  the  single  question  submitted  to  the  jury  in  respect  to 
the  unusual  flow  of  water  cast  upon  plaintiff's  land. 

It  appears,  in  the  evidence   in   this  cause,  that  in  the  improve 


BASTABLE  v.  CITY  OF  SYKACUSE.  591 

FOURTH  DEPARTMENT,  OCTOBER  TERM,  1876. 

ment  of  University  avenue,  in  connection  with  other  streets  cross- 
ing the  same,  the  surface  drainage  of  about  thirty-two  acres  of 
land,  which  previously  had  flowed  off  to  the  low  lands  in  no  par- 
ticular channel,  was  diverted  and  collected  into  said  avenue,  and 
flowed  off,  in  and  over  the  same,  with  a  descent  quite  rapid,  from 
the  high  land  above  at  the  head  of  the  street,  for  much  of  the 
distance  through  said  street,  till  it  finally  ran  over  the  sidewalks 
of  the  same  in  a  large  volume  on  to  the  plaintiff's  land,  causing 
him  much  injury.  I  cannot  think  the  plaintiff  is  bound  to  submit 
to  such  injury,  and  has  no  redress  for  the  damage  sustained. 

As  between  two  owners  of  adjacent  lands,  one  could  not  con- 
struct ditches  or  drains  on  his  own  land,  thereby  collecting  the 
g'vface  water  over  a  large  territory,  and  cause  such  water  to  flow 
in  a  single  chanuru  upon  the  adjoining  owner,  without  responsi- 
bility for  the  damages  thereby  occasioned.  This  was  so  held  in  this 
department  in  Foot  v.  Bronson  (4  Lans.,  47) ;  and  also  in  Dickin- 
son v.  City  of  Worcester  (7  Allen,  22) ;  Livingston  v.  McDonald 
(21  Iowa,  160) ;  Bents  v.  Armstrong  (8  Watts  &  Ser.,  40).  The 
case  of  Mills  v.  The  City  of  Brooklyn  decided  nothing  in  conflict 
with  this  view.  It  decides  nothing  more  than  that  an  action  cannot 
be  maintained  against  a  municipal  corporation,  for  its  omissions  ta 
legislate  upon  a  subject  within  its  power.  It  was  there  held  that 
such  action  could  not  be  maintained  against  such  corporation  for 
not  providing  sufficient  sewerage  for  every  or  a'ny  part  of  the  city. 
The  same  omission  to  construct  a  sewer  adjacent  to  plaintiff  's  lot 
to  carry  off  the  surface  water  that  collected  thereon,  together  with 
a  complaint  that  the  defendant  had  raised  the  grade  of  the  street 
adjacent  to  her  premises,  were  the  grounds  of  action  set  up  in  the 
case  of  Wilson  v.  The  Mayor  of  New  York  (1  Den.,  596) ;  and, 
also,  in  Kavanagh  v.  The  City  of  Brooklyn  (supra),  the  city  had 
raised  the  grade  of  a  street  adjacent  to  the  plaintiff 's  house,  leav- 
ing the  house  below  the  grade  of  the  street,  where  it  had  been 
erected  upon  a  lower  grade  previously  fixed. 

The  mayor  and  common  councilmen  of  the  defendant  are  simply 
commissioners  of  highways  with  enlarged  powers.  In  determin- 
ing to  make  any  city  improvement,  in  opening,  grading  or  paving 
streets,  laying  curbs  or  gutter-stones,  sidewalks,  etc.,  they  act  under 
the  authority  of  their  charter,  and  exercise  a  large  discretion.  Foi 


,392  BASTABLE  v.  CITY  OF  SYRACUSE. 

FOURTH  DKPAUTMKNT,  OCTOBER  TERM,  1876. 

their  acts  the  city  is  responsible,  precisely  as  the  highway  coinmis 
sioners  of  towns  are  responsible  for  their  acts  and  neglects.  The 
corporation  is  liable  for  the  positive  misfeasance,  and  for  the  uegli 
geuce  of  its  officers,  public  agents  and  servants,  or  persons  acting 
under  its  authority,  while  particular  officers,  doubtless,  in  most 
cases,  would  be  exempt  from  any  personal  responsibility.  It  is  in 
respect  to  this  class  of  acts  and  duties,  and  this  immunity  on  the 
part  of  the  individual  aldermen  of  a  city  or  trustee  of  a  village 
who  may  vote  for  resolutions  or  ordinances,  directing  or  authoriz- 
ing public  improvements,  that  judges  sometimes  speak  of  the  acts 
and  duties  as  judicial,  and  deny  responsibility  on  that  ground.  In 
Mitts  v.  Brooklyn  (supra),  Judge  DENIO  well  said  such  duties  were 
not  judicial,  for  it  did  not  concern  the  administration  of  justice, 
but  did  say  that  it  was  of  a  judicial  nature  because  it  required  the 
same  qualities  of  judgment  and  deliberation.  I  think,  with  more 
accuracy  and  precision,  it  might  be  said  that  such  duties  were  of  a 
legislative  character,  involving  the  exercise  of  discretion  and  judg- 
ment, and  a  regard  to  many  governmental  or  prudential  considera- 
tions. The  duties  of  all  public  officers  involve  and  require,  more 
or  less,  the  exercise  of  discretion  and  judgment.  It  is  a  confound- 
ing of  terms  to  call  the  exercise  of  discretion  and  judgment  in 
such  case  judicial. 

If  a  municipal  corporation  directs,  by  vote,  resolution  or  ordi- 
nance, an  illegal  act  or  thing  to  be  done,  the  party  who  proceeds 
to  do  the  unlawful  thing  will,  ordinarily,  be  a  trespasser,  and  the 
corporation  responsible  for  his  acts.  So  if  the  administrative 
officer  of  a  municipal  corporation  is  guilty  of  negligence  in  the 
discharge  of  duties  intrusted  to  him,  the  corporation  will  be  liable 
for  his  neglects.  (Dillon  on  Munic.  Corp.,  §  T89.)  In  this  view, 
the  defendant  was  properly  held,  at  the  Circuit,  responsible  for 
the  neglect  of  its  officer,  in  omitting  to  remove  the  large  accumu- 
lation of  filth  from  the  street  and  gutter  where  it  had  been  depos- 
ited by  the  water  flowing  down  University  avenue  and  overflowing 
the  sidewalks,  if  its  superintendent  of  streets  or  other  officers  had 
knowledge  of  such  accumulation  and  failed  to  act  with  proper  dis- 
patch. It  is  upon  this  ground  that  this  same  city  was  held  respon- 
sible for  the  neglect  of  its  officers  to  properly  construct  and  keep 
in  repair  its  sewers  in  Barton  v.  Syracuse  (37  Barb.,  293),  and  \v 


WILSON  M.  LAWRENCE.  593 

FOURTH  DEPARTMENT,  OCTOBER  TERM,  1876. 

McCarthy  v.  Syracuse  (46  N.  Y.,  194) ;  and  for  the  unskillful  and 
negligent  construction  of  a  sewer  the  city  of  Rochester  was  held 
responsible  for  the  damages  resulting  therefrom  in  the  Rochester 
White  Lead  Co.  v.  City  of  Rochester  (3  N.  Y.,  464) ;  and  for 
unskillfulness  and  negligence  in  the  construction  of  a  sidewalk 
the  city  of  Auburn  was  held  liable  in  Clemence  v.  Auburn,  (11 
S.  C.  N.  Y.  [4  Hun],  386). 

Upon  both  grounds  upon  which  the  cause  was  given  to  the  jury 
1  think  the  charge  was  substantially  correct,  and  the  exceptions 
thereto  not  well  taken,  and  that  the  judgment  should  be  affirmed. 

Present  —  MULLIN,  P.  J.,  SMITH  and  TALOOTT,  JJ. 
Judgment  affirmed. 


MARION  B.  P.  WILSON,  RESPONDENT,  v.  CYRUS  B.  LAW- 
RENCE, INTERPLEADED,  ETC.,  APPELLANT. 

Interpleader — Code,  %  122 —  supplemental  complaint. 

Where  upon  the  application  of  the  defendant  an  order  is  made,  in  pursuance  of 
section  122  of  the  Code,  directing  that  he  pay  into  court  the  money,  to  recover 
which  the  action  is  brought,  and  that  a  third  person,  by  whom  the  same  is 
claimed,  be  substituted  as  defendant  in  his  place,  the  plaintiff  should  apply  for 
leave  to  serve  a  supplemental  complaint  setting  forth  such  additional  facts,  as 
may  be  necessary  to  show  that  he  has  a  right  to  recover  the  amount  claimed 
as  against  the  defendant. 

If  the  plaintiff  fail  so  to  do,  and  proceed  to  trial  upon  the  original  complaint,  the 
substituted  defendant  may  move  to  dismiss  the  same,  on  the  ground  that  as  to 
him  it  does  not  state  facts  sufficient  to  constitute  a  cause  of  action. 

In  an  action  by  a  widow  to  recover  the  amount  of  a  policy  issued  to  her  upon  the 
life  of  her  husband,  which  has,  prior  to  his  death,  been  assigned  to  the  defend- 
ant upon  his  paying  to  her  the  sum  of  $2,000,  a  court  of  equity  will  not  decree 
the  restitution  of  such  policy  to  her  and  the~cancellation  of  the  assignment,  wi  h 
out  requiring  her  to  restore  the  money  so  received  by  her.  (Per  SMITH,  J.) 

APPEAL  from  a  judgment  in  favor  of  the  plaintiff,  entered  upon 
the  trial  of  this  action  by  the  court  without  a  jury. 
HTTN— VOT..  VIII.         75 


594  WILSON7  y.  LAWRENCE. 

FODRTH  DEPARTMENT,  OCTOBER  TERM,  1876. 

The  action  was  originally  brought  against  the  Connecticut  Mutual 
Life  Insurance  Company  to  recover  $2,500,  the  amount  of  a  policv 
of  life  insurance  upon  the  life  of  John  G.  Wilson,  who  was  husband 
of  respondent. 

After  action  was  brought  an  order  was  granted  by  this  court,  at 
a  Special  Term  thereof,  upon  the  application  of  the  insurance  com- 
pany, substituting  Cyrus  B.  Lawrence  as  defendant  in  place  of  said 
insurance  company,  and  that  the  insurance  company  be  released 
from  all  further  liability  upon  paying  the  clerk  of  Ontario  county 
the  money  payable  upon  said  policy.  No  notice  of  the  application 
for  said  order  was  given  to  said  Lawrence. 

Lawrence  served  an  answer,  claiming  that  respondent  had,  on 
the  2d  day  of  April,  1873,  assigned  the  policy  of  insurance  to  him, 
and  that  he  was  the  owner  and  holder  of  the  policy. 

The  cause  was  heard  on  the  same  complaint  as  originally  served. 

No  summons  was  ever  served  on  Lawrence,  but  a  copy  of  the 
order  granted  on  the  27th  day  of  March,  1876,  with  the  complaint 
of  plaintiff,  was  served  on  Lawrence,  and  he  answered  by  his 
attorney. 

The  plaintiff  claimed  to  recover  on  the  complaint  and  the 
admissions  in  Lawrence's  answer,  and  was  allowed  to  prove  on  the 
trial,  against  the  objection  of  appellant,  the  said  order  of  March 
27,  1876,  and  also  that  the  insurance  company  had  paid  the  money 
on  the  policy  irfto  court. 

The  court  denied  appellant's  motion  to  dismiss  plaintiff's  com- 
plaint, on  the  ground  that  the  complaint  did  not  state  a  cause  of 
action  against  Lawrence,  and  that  the  court  had  never  acquired 
jurisdiction  over  the  subject-matter  of  the  action. 

The  policy  in  question  bears  date  the  9th  day  of  October,  1868, 
upon  the  life  of  John  G.  Wilson,  husband  of  plaintiff,  and  by  it 
the  said  life  insurance  company  agreed  to  pay  $2,500  to  the  plain- 
tiff, her  executors,  administrators  or  assigns  on  the  death  of  said 
John  G.  Wilson.  The  death  of  Wilson  was  admitted,  and  the  com- 
pany, by  paying  money  into  court,  admitted  its  liability  on  the 
policy  in  question. 

It  appears  by  the  policy  itself,  and  also  by  admissions  on  the  trial, 
that  the  premiums  on  the  policy  were  paid  by  plaintiff  herself. 

On  the  trial  the  appellant  offered  in  evidence  an  assignment  of 


WILSON  v.  LAWRENCE.  595 

FOURTH  DEPARTMENT,  OCTOBER  TERM,  1876. 

the  said  policy,  bearing  date  the  2d  day  of  April,  1873.  The 
assignment  was  executed  by  the  said  Marion  B.  P.  Wilson,  and  wag 
also  signed  by  her  husband  and  duly  acknowledged  before  a  notary 
public,  and  Mrs.  Wilson  acknowledged  that  she  executed  the  same 
"  without  any  fear  or  compulsion  of  her  husband."  The  considera- 
tion of  the  assignment  was  $2,000,  and  the  assignment  covered  the 
policy  in  question,  "  together  with  all  sum  or  sums  of  money, 
interest,  principal  and  advantage  whatsoever,  now  due,  or  hereafter 
to  arise,  or  to  be  had  or  made  by  virtue  thereof." 

The  appellant  also  proved  that  he  had  been  in  possession  of  the 
policy  and  said  assignment,  since  the  date  of  the  said  assignment. 

The  court  decided  that  plaintiff  was  entitled  to  judgment,  award- 
ing to  her  the  money  in  the  hands  of  the  clerk  of  Ontario  county, 
and  that  she  have  judgment  for  costs  against  Lawrence. 

Henry  M.  Field,  for  the  appellant. 
Robert  P.  Willson,  for  the  respondent. 

E.  DARWIN  SMITH,  J. : 

The  provision  in  section  122  of  the  Code  that  "  A  defendant 
against  whom  an  action  is  pending  upon  a  contract  or  for  specific 
real  or  personal  property  may,  at  any  time  before  answer,  upon  affi- 
davit that  a  person  not  a  party  to  the  action  and  without  collusion 
with  him  makes  against  him  a  demand  for  the  same  debt  or  prop- 
erty, upon  due  notice  to  such  person  and  the  adverse  party,  apply 
to  the  court  for  an  order  to  substitute  such  person  in  his  place,  and 
discharge  him  from  liability  to  either  party  on  his  depositing  in 
court  the  amount  of  the  debt,  or  delivering  the  property  or  its 
value  to  such  person  as  the  court  may  direct,  and  the  court  may,  in 
its  discretion,  make  the  order,"  was  designed  to  give  a  new  remedy 
as  a  substitute  for  and  concurrent  with  a  bill  of  interpleader  in 
equity.  (McKay  v.  Draper,  27  N.  Y.,  256  ;  Patterson  v.  Perry, 
14  Howard,  505.) 

As  the  Cole  prescribes  no  mode  of  proceeding  under  this  sec 
tion,  the  practice  under  it  should  be,  I  think,  as  far  as  practicable, 
that  adopted  by  the  courts  of  equity  in  cases  of  interpleader  in 
analogous  cases. 


596  WILSON  v.  LAWRENCE. 

FOURTH  DEPARTMENT,  OCTOBER  TERM,  1876. 

The  order  made  at  Special  Term  allowing  the  original  defend 
ant,  the  Connecticut  Mutual  Life  Insurance  Company,  to  pay  into 
court  the  amount  due  on  the  policy  of  insurance  referred  to  in  the 
plaintiffs  complaint,  and  that  Cyrus  B.  Lawrence  be  substituted  us 
defendant  in  the  action  in  the  place  of  the  said  insurance  company, 
and  that  such  insurance  company  be  discharged  from  liability  t<> 
either  party,  and  that  the  said  Cyrus  B.  Lawrence  appear  and 
defend  the  action  within  twenty  days  after  service  upon  him  of  ;i 
copy  of  said  order  and  a  copy  of  the  complaint,  or  that  the  plain- 
tiff might  apply  to  the  court  for  the  sums  so  deposited,  was  equiva- 
lent, I  think,  in  effect,  to  the  order  usually  made  upon  bills  of 
interpleader  after  both  parties  had  appeared  and  answered,  adjudg- 
ing that  the  plaintiff  in  such  bill  be  paid  his  costs,  and  upon  depos- 
iting the  money  in  dispute  with  the  clerk,  be  dismissed  from  the 
further  prosecution  of  the  action,  and  that  the  defendants  inter- 
plead,  settle  and  adjust  their  claims  and  demands  in  respect  to  sucli 
fund  as  between  themselves. 

The  said  order  having  been  granted  ex  imrte^  so  far  as  relates  to 
the  said  Cyrus  B.  Lawrence,  was  irregular  and  void  as  against  him, 
but  this  irregularity  was,  however,  waived  by  his  appearance  and 
answer  in  the  suit.  Such  appearance  should  be  deemed  to  admit 
that  the  said  order  was  properly  granted,  to  the  same  effect  as  a 
defendant  in  a  suit  of  interpleader  would  admit  by  not  contesting 
it,  that  the  bill  was  properly  filed  as  above  stated. 

The  court  having  clearly  jurisdiction  of  the  subject-matter  of  such 
action,  such  appearance  by  the  said  Lawrence  was  also  a  submis- 
sion of  his  person  to  the  jurisdiction  of  the  court,  and  he  is  there- 
fore properly  to  be  regarded  as  the  defendant  in  said  action. 

Notwithstanding  such  appearance  and  submission  to  the  juris- 
diction of  the  court,  the  defendant  Lawrence  was  not  debarred  the 
right  to  raise  at  the  trial  the  question  that  the  plaintiff's  complaint 
did  not  state  any  cause  of  action  against  him,  and  that,  admitting 
every  fact  therein  stated  to  be  true,  no  judgment  could  be  obtained 
in  the  action  against  him.  This  objection  was  clearly  well  taken, 
and  the  motion  to  dismiss  said  complaint  was  erroneously  over- 
ruled. 

The  complaint  set  out  a  cause  of  action  against  the  Commercial 
Mutual  Life  Insurance  Company  ;  it  contains  no  allegations  relating 


WILSON  v.  LAWRENCE.  59? 

FOUBTH  DEPARTMENT,  OCTOBER  TERM,  1876. 

to  the  defendant,  or  which  he  was  called  upon  to  answer  or  deny. 
The  order  aforesaid  was  also  improperly  received  in  evidence.  It 
was  not  directed  or  adapted  to  prove  any  issue  in  the  action. 
Causes  must  be  tried  at  the  Circuit  upon  the  pleadings,  and  no 
evidence  is  admissible  not  directed  to  prove  some  issue  made  by 
the  pleadings,  and  no  judgment  can  be  rendered  for  the  plaintiff 
not  based  upon  proper  allegations  of  the  complaint. 

After  the  making  of  the  said  order  of  substitution,  the  Con- 
necticut Insurance  Company  was  dismissed  from  the  action,  and 
the  same  was  to  proceed  against  the  defendant  Lawrence,  to  reach 
the  fund  deposited  with  the  clerk.  The  plaintiff  should  have 
obtained  an  order  of  the  court,  as  suggested  in  Moak's  Yan  Sant- 
voord's  Pleadings  (p.  358),  under  section  177  of  the  Code,  allowing 
him  to  make  a  supplemental  complaint  alleging  the  facts  occurring 
after  the  commencement  of  said  action,  the  making  of  the  order  of 
substitution  and  the  dismissal  of  the  insurance  company  as  a 
defendant  and  the  substitution  of  Lawrence  in  its  place,  and  the 
deposit  of  the  amount  due  upon  the  policy  of  insurance  with  the 
clerk,  with  such  other  appropriate  allegations  in  relation  to  the 
defendant,  as  said  plaintiff  would  be  required  to  prove  to  maintain 
the  action  for  the  restoring  to  her  the  policy  of  insurance  and  the 
revocation  or  rescission  of  the  assignment  of  said  policy  to  him. 

The  defendant  was  entitled  to  have  a  complaint  served  upon  him 
containing  proper  allegations  relating  to  him  or  his  claims,  which 
he  might  controvert  in  his  answer. 

Of  this  right  the  defendant  was  not,  and  could  not  be  deprived 
by  the  order  of  the  court  —  certainly  not  by  an  ex  parte  order.  He 
was  entitled  to  have  his  rights  presented,  contested  and  asserted  in 
appropriate  pleadings. 

The  judgment  upon  the  findings  of  the  learned  judge,  I  am 
inclined  to  think,  also,  upon  the  merits,  independently  of  these 
considerations,  was  erroneous.  He  finds  that  the  said  policy  of 
insurance  was  assigned  and  transferred  by  the  said  plaintiff  to  the 
defendant  Lawrence,  the  consideration  therein,  having  been  received 
by  the  plaintiff  and  her  husband,  being  $2,000,  and  that  thereupon 
the  said  policy  was  delivered  to  said  Lawrence.  I  cannot  think 
this  court  should  decree  the  restitution  of  said  policy  to  the  plain- 
tiff and  the  invalidity  and  cancellation  of  said  assignment  thue 


598  WILSON  v.  LAWRENCE. 

FOURTH  DEPARTMENT,  OCTOBEB  TERM,  1876. 

made  for  a  present  consideration,  paid  in  hand  to  the  plaintiff, 
without  requiring  her  to  account  for  and  restore  the  said  sum  of 
$2,000  so  received. 

This  proceeding  is  of  an  equitable  nature,  and  the  fund  in  court 
should  be  distributed  or  paid  out  upon  equitable  principles.  No 
judgment,  I  think,  should  have  been  rendered  for  the  plaintiff 
which  directed  any  thing  more  than  that  the  excess  over  $2,000 
and  interest  to  be  paid  from  the  fund  in  court  to  the  plaintiff. 
This  view  is  upon  the  assumption  that,  as  the  plaintiff  before  the 
assignment  of  said  policy  was  the  absolute  owner  of  the  same,  as 
her  separate  estate,  she  must  have  received  such  money  to  her  own 
use.  She  cannot  be  allowed,  as  I  conceive,  to  keep  this  money  so 
received  by  her  from  the  defendant,  and  also  to  take  the  full  amount 
arising  from  this  policy  from  the  fund  in  court.  This  would  be 
too  gross  a  fraud  for  this  court  to  sanction. 

The  judgment  should,  therefore,  be  reversed  and  a  new  trial 
granted ;  and  I  think  the  plaintiff  may  be  allowed,  without  further 
application  to  the  court,  to  make  a  supplemental  or  amended  com- 
plaint, as  above  suggested,  and  serve  the  same  upon  the  defendant 
within  twenty  days  after  the  entry  of  the  order  upon  this  decision, 
upon  payment  af  the  costs  of  the  appeal ;  and  the  costs,  otherwise, 
to  abide  the  event  of  the  decision. 

Present  —  MUI.LIN,  P.  J.,  SMITH  and  TA.LCOTT,  JJ. 

Judgment  reversed  and  new  trial  granted,  with  leave  to  plaintiff 
to  make  and  serve  a  supplemental  complaint  within  twenty  days 
after  entry  of  the  order  of  within  decision,  on  payment  of  the 
3osts  of  the  appeal,  otherwise  costs  to  abide  event. 


McCAIG  v,  ERIE  RAILWAY  CO.  599 

FOUBTH  DEPABTMENT,  OCTOBEB  TKUM,  1876. 


JOHN    McCAIG,    RESPONDENT,    v.   THE    ERIE    RAILWAY 
COMPANY,  APPELLANT. 

Radroad  company  — Jire  occasioned  by  sparks  —  Negligence  —  burden  of  proof, 

The  mere  fact  that  a  fire  is  occasioned  by  sparks  emitted  from  the  smoke-stacks 
of  locomotives  used  by  a  railroad  company  does  not,  of  itself,  establish  negli- 
gence on  its  part,  nor  would  it  be  sufficient  to  authorize  a  jury  to  infer  negli- 
gence, unless  the  emission  of  the  sparks  was  unusual  in  degree  or  character,  or 
the  sparks  were  of  an  extraordinary  size  and  such  as  would  not  be  emitted  from 
perfectly  constructed  locomotives. 

In  a  case  not  within  such  exception,  the  burden  of  proving  that  the  railroad  com- 
pany did  not  exercise  due  precaution  rests  on  the  plaintiff. 

Upon  the  trial  of  an  action  to  recover  damages  sustained  by  a  fire  started  by 
sparks  from  a  locomotive  owned  by  the  defendant,  the  judge  charged  the  jury 
"  if  all  the  evidence  satisfied  them  that  there  had  been  negligence  on  the  part  of 
the  defendants,  although  they  might  not  be  able  to  satisfy  themselves  in  what 
that  negligence  consisted,  they  would  be  authorized  to  find  a  verdict  for  the 
plaintiff."  Held,  that  this  was  error;  that  if  the  jury  could  not  find  in  the  evi- 
dence any  rational  ground  upon  which  to  impute  negligence  to  the  defendant, 
they  should  give  a  verdict  in  their  favor. 

APPEAL  from  an  order  of  the  County  Court  of  Steuben  county, 
denying  a  new  trial  on  a  motion  made  on  a  case  and  exceptions. 

The  action  was  brought  to  recover  for  damages  caused  by  fire, 
alleged  to  have  been  set  by  sparks  from  defendant's  locomotives. 

E.  F.  Babcock,  for  the  appellants. 

J.  W.  <&  H.  J.  Dinnmnyy  for  the  respondent. 

E.  DARWIN  SMITH,  J. : 

It  cannot  be  doubted  that  the  fire  which  caused  the  injury  of 
which  the  plaintiff  complains  was  caused  by  sparks,  proceeding 
from  one  or  more  of  the  three  locomotives  of  the  defendants 
which  passed  the  plaintiff's  premises  immediately  before  such  fire. 
But  the  defendants  are  clearly  not  responsible  for  such  injury 
unless  such  fire  was  caused  by  some  negligence  on  their  part,  or 
that  of  their  servants  or  agents  in  charge  of  such  trains.  And  the 
fact  that  such  fire  was  caused,  as  must  have  been  the  case,  from 
sparks  emitted  from  some  one  of  the  defendants'  locomotives,  did 


600  McCAIG  v.  ERIE  RAILWAY  CO. 

FOURTH  DEPARTMENT,  OCTOBER  TERM,  1876. 

not  necessarily  imply  negligence  on  their  part.  (Collins  v.  N.  Y.  C. 
tmd  H.  R.  R.  R.  Co.,  12  S.  C.  N.  Y.  [5  Hun],  504 ;  Sheldon  v.  Hud- 
son R.  R.  R.  Co.,  29  Barb.,  227 ;  4  Kern.,  224 ;  Field  v.  N.  T. 
C.  R.  R.  Co.,  32  N.  Y.,  350.) 

Negligence  in  such  cases  cannot  be  presumed  from  the  use  of 
fire  in  propelling  their  engines  by  the  defendants,  for  this  use  was 
lawful,  and  duly  authorized  by  the  legislature.  Nor  can  it  be  pre- 
sumed from  the  fact  that  a  tire  occurred  doing  damage,  but  such 
negligence  must  be  clearly  proved  affirmatively,  (Whart.  on  Neg., 
§§  869,  870,  872 ;  Sher.  &  Red.  on  Neg.,  §  12.) 

When  the  plaintiff  rested  at  the  trial,  he  had  proved  simply  the 
fact  of  the  fire,  and  the  mode  of  its  origin  from  sparks,  and  the 
damages  sustained.  He  had  proved  affirmatively  no  improper  act, 
or  the  omission  of  any  duty  or  fact  involving  any  negligence  on 
the  part  of  the  defendants  or  their  servants.  The  judge  said,  in 
his  charge  to  the  jury,  that  the  "  plaintiff  had  given  no  direct 
evidence  of  any  omission  or  negligence  of  defendants,  and  had 
left  it  entirely  with  them  to  establish  the  negligence  of  which  he 
complains,  by  the  circumstances." 

The  fire  in  question  occurred  on  the  plaintiff's  premises,  situate 
adjacent  to  the  defendants'  railroad,  between  the  villages  of  Addi- 
son  and  Hornellsville,  in  the  county  of  Steuben.  The  trains 
referred  to  were  three  extra  freight  trains  going  west,  following 
each  other  between  those  places,  three-fourths  of  a  mile  apart. 
The  defendants  proved,  by  their  officers,  engineers  and  othoi 
servants,  that  the  locomotives  upon  these  trains  were  all  first-class 
engines,  with  the  most  approved  kind  of  spark-arresters,  all  in 
good  order  at  the  time  of  the  fire ;  and  that  they  were  all  inspected 
on  their  arrival  at  Hornellsville,  some  twenty  miles  west  of  plain- 
tiff's premises,  on  the  day  in  question,  and  that  the  stack,  netting 
and  grates  were  all  found  in  good  order. 

In  respect  to  the  class  of  evidence  given  by  the  defendants,  the 
judge  charged  that  they  were  to  take  that  evidence  into  consider- 
ation and  give  to  it  such  weight  as  it  was  entitled  to ;  and,  also, 
that  "  now  the  burden  of  proof  is  changed  from  the  plaintiff  to 
the  defendants.  It  rests  upon  them  to  satisfy  you  that  they  did 
exercise  due  precaution.  If  you  are  convinced  that  such  was  the 
case,  you  will  be  justified  in  finding  a  verdict  for  the  defendants. " 


McCAIG  v.  ERIE  RAILWAY  CO.  601 

FOURTH  DEPARTMENT,  OCTOBER  TERM,  1876. 

This  portion  of  the  charge  was  duly  excepted  to  by  the  defend- 
ants' counsel. 

The  judge  also  charged  the  jury  that  if  they  were  satisfied  that 
there  had  been  negligence  on  the  part  of  the  defendants,  although 
they  might  not  be  able  to  satisfy  themselves  in  what  the  negligence 
consisted,  they  were  authorized  to  find  a  verdict  for  the  plaintiff. 
This  portion  of  the  charge  was  also  duly  excepted  to.  The 
defendants'  counsel  also  excepted  to  the  refusal  of  the  court  to 
nonsuit  the  plaintiff,  upon  motion  for  that  purpose  duly  made  at 
the  close  of  the  plaintiff's  evidence. 

In  overruling  the  motion  for  a  nonsuit,  the  judge,  at  the  trial, 
must  have  held,  in  effect,  that  the  fire  having  been  occasioned  by 
sparks  thrown  from  one  of  the  defendants'  engines,  the  jury  might 
infer  or  presume  negligence  from  such  fact.  In  his  charge  to  the 
jury  afterwards,  he  states  that  it  was  not  pretended  to  show  what 
particular  negligence  was  the  cause  of  the  fire,  but,  from  the  distance 
at  which  the  fire  was  caught,  it  was  sought  to  be  shown  that  it  was 
thrown  from  the  smoke  stack,  and  carried  by  the  wind  to  some 
distance.  If  this  were  so,  it  seem.s  to  me  the  evidence  was  not 
sufficient  to  warrant  a  verdict  for  the  plaintiff',  without  further 
proof  showing  that  such  emission  of  sparks  was  unusual  in  degree 
or  character,  or  the  sparks  were  of  an  extraordinary  size,  and  such 
as  would  not  be  emitted  from  perfectly  constructed  locomotives. 
(Rood  v.  N.  Y.  and  E.  R.  R.  Co.,  18  Barb.,  80.)  But  the  motion 
for  a  nonsuit  being  overruled,  the  defendants'  evidence  was  prop- 
erly given  and  directed  to  repel  such  presumption  or  inference  of 
negligence,  arising  from  such  emission  of  sparks. 

The  evidence  given  by  the  defendants  tended  to  show,  and  I 
think  did  show  quite  conclusively,  that  the  said  engines  were 
properly  constructed,  and  had  the  best  and  most  approved  appar- 
atus to  prevent  the  emission  of  fire  or  sparks.  It  was  error,  there- 
fore, to  hold,  in  respect  to  such  evidence,  that  the  burden  of  proof 
was  upon  the  defendants.  The  defendants  did  not  seek  to  estab- 
lish any  affirmative  issue,  but  simply  to  negative  the  plaintiff's 
case  by  disproving  the  ground  upon  which  it  was  based.  The 
inference  from  the  fact  of  the  emission  of  sparks  by  said  locomo- 
tives was  that  they,  or  some  one  of  them,  were  out  of  order  or 
improperly  constructed.  The  defendants  simply  sought  to  show 
HUN— VOL.  VIII.  76 


(J02  McCAIG  1-.  EKIE  RAILWAY  CO. 

FOTTBTH  DEPARTMENT,  OCTOBER  TEKSI,  1876. 

that  such  inference  was  unfounded.  The  plaintiff  had  the  burden 
of  evidence  upon  the  whole  issue,  which  was  to  establish  negli- 
gence on  the  part  of  the  defendants.  The  other  exception  to  the 
charge  that  "  if  all  the  evidence  satisfied  them  that  there  had  been 
negligence  on  the  part  of  the  defendants,  although  they  might  not 
be  able  to  satisfy  themselves  in  what  that  negligence  consisted," 
they  would  be  authorized  to  find  a  verdict  for  the  plaintiff,  is  also, 
I  think,  well  taken.  This  portion  of  the  charge  is  very  little 
better  than  saying  to  the  jury,  that  if  they  could  find  no  evidence 
of  any  particular  improper  act  or  omission  of  duty  on  the  part  of 
the  defendants,  and  none  had  been  shown  or  specified  by  the  coun- 
sel or  the  court,  that  would  warrant  a  verdict ;  yet  if  they  believed 
that  there  was  negligence,  although  they  could  not  specify  how  it 
arose,  or  satisfy  themselves  in  what  it  consisted,  they  might, 
nevertheless,  find  a  verdict  upon  such  belief.  This  doctrine  is 
unsound  and  unjust.  It  would  make  jury  trials  a  very  uncertain 
and  unsafe  mode  of  determining  the  facts  in  judicial  proceedings. 
To  let  a  jury  find  a  verdict  imputing  negligence  or  crime  thus 
upon  conjecture,  or  without  evidence,  or  such  evidence  as  will  bear 
the  light  of  examination  and  discussion,  ur  evidence  which  shows 
what  constituted  the  crime  or  the  negligence  imputed,  could  not 
be  otherwise  than  of  dangerous  consequence. 

The  party  who  imputes  negligence  to  another  must  prove  that 
the  defendant,  in  some  act  or  omission,  violated  a  duty  resting  upon 
him;  he  must  show  that  the  accident  or  injury  resulted  from  the 
want  of  some  precaution  which  the  defendant  might  and  ought 
to  have  resorted  to ;  and,  as  WELLES,  J.,  says,  in  Daniel  v.  The 
Metropolitan  fiailroad  Company  (L.  R.,  3  C.  P.,  222),  '*  the  plain- 
tiff should  also  show,  with  reasonable  certainty,  what  particular 
precaution  should  have  been  taken."  The  burden  of  proof  in  such 
case  rests  upon  the  plaintiff,  and  he  must  clearly  prove  the  facts 
from  which  it  can  fairly  be  inferred  that  defendant's  negligence,  in 
some  certain  and  clear  particular,  caused  the  injury.  (Sher.  & 
Red.  on  Neg.,  p.  14,  §  12.)  When  these  facts  are  not  established, 
the  plaintiff  should  be  nonsuited,  or  the  jury  should  be  instructed 
to  find  for  the  defendant.  If  they  cannot  find  in  the  evidence  any 
rational  ground  upon  which  to  base  a  verdict  imputing  negligence 
they  should  find  that  no  negligence  was  established.  The  plain 


HUBBELL  v.  BLAKESLEE.  G03 

FOURTH  DEPARTMENT,  OCTOBER  TERM,  1876. 

tiff  should  make  out  his  case   by  a  clear  preponderance  in  the 
evidence. 

The  judgment  should  be  reversed  and  a  new  tiial  granted,  with 
costs  to  abide  the  event. 

Present  —  MULLIN,  P.  J.,  SMITH  and  TALOOTT,  JJ. 

Order  reversed  and  new  trial  granted,  costs  to  abide  event. 


MARIA  G.  HUBBELL,  RESPONDENT,  v.  GEO.  H.  BLAKESLEE 

AND   OTHERS,    APPELLANTS. 

Mortgage — after  payment —  cannot  be  made  to  continue,  as  a  valid  security — trust 

in  relation  to. 

No  trust  can  be  created  and  attached  to  an  existing  mortgage,  so  as  to  make  it  a 
valid  security  for  any  greater  amount  than  that  specified  in  the  body  and  upon 
the  face  thereof 

After  the  execution  and  delivery  of  a  mortgage,  but  on  the  same  occasion,  and 
while  the  parties  were  still  together,  it  was  agreed  between  the  mortgagor  and 
the  mortgagee  that  the  latter  should  hold  the  mortgage  until  his  debt  was  paid, 
and  then  assign  it  to  the  plaintiff,  to  be  held  by  her  as  security  for  a  debt  owing 
to  her  by  the  mortgagor. 

The  debt  of  the  mortgagee  having  been  paid,  the  mortgage  was  assigned  to  the 
plaintiff,  who  brought  this  action  to  foreclose  it.  Held,  that  the  payment  of 
the  debt  to  the  mortgagee  extinguished  his  mortgage,  and  the  assignment  to 
the  plaintiff  was  a  nullity.  s 

APPEAL  from  a  judgment  in  favor  of  the  plaintiff',  entered  upon 
the  trial  of  this  action  by  the  court  without  a  jury. 

J.  S.  Garlock,  for  the  appellants. 
J.  A.  Stall,  for  the  respondent. 

E.  DARWIN  SMITH,  J. : 

The  complaint  in  this  action  sets  out  a  promissory  note,  made  by 
Charles  Burgess  for  $3,150.72,  payable  to  Allen  Todd,  six  months 
after  date  (November  1,  1871),  and  a  mortgage  given  at  same  date 
as  collateral  to  said  note,  and  the  assignment  of  the  said  note  and 
mortgage  to  the  plaintiff,  and  prays  for  the  usual  judgment  of 


504  HUBBELL  v.  BLAKESLEE. 

FOUKTH  DEPARTMENT,  OCTOBER  TERM,  1876. 

foreclosure  aud  sale  of  said  mortgaged  premises  for  the  non-pay- 
ment of  said  note,  claiming  that  there  was,  at  the  commencement 
of  said  action,  actually  due  on  said  note  and  mortgage  the  sum  ot 
$3,653.25. 

Several  of  the  defendants  in  said  action,  being  judgment  01 
attaching  creditors  of  the  said  Charles  Burgess,  defended  on  tha 
ground  that  said  note  and  mortgage  had  been  paid  and  satisfied. 

The  proofs  in  the  case  clearly  show  that  the  said  note  and  mort- 
gage were  afterwards  secured  also  by  a  conveyance  of  real  estate, 
together  with  other  debts  of  the  said  Burgess,  amounting  in  the 
aggregate  to  the  sum  of  $8,626.79.  That  said  Todd  had  given  to 
the  wife  of  Burgess  an  agreement  for  a  sale  and  conveyance  to 
her  of  said  real  estate,  on  the  payment  of  such  debt.  That  such 
repurchase  was  never  made  or  debt  paid  by  Mrs.  Burgess,  but  on 
the  contrary  she  gave  up  said  contract  of  sale  to  the  executors  of 
said  Todd,  who  received  said  real  estate  in  full  payment  of  said 
debt,  they  at  the  same  time  agreeing  to  assign  said  note  and  mort- 
gage in  suit  to  the  plaintiff. 

The  clear  legal  effect  of  this  arrangement  was  to  pay  and  satisfy 
the  said  note  and  mortgage.  The  debt  to  Todd  which  said  note 
and  mortgage  were  given  to  secure  was  paid  ;  it  no  longer  existed 
as  a  valid  claim  in  law  or  equity,  and  the  assignment  of  said  note 
and  mortgage  to  plaintiff  was  a  nullity.  It  was  a  simple  assign- 
ment of  a  paid  up  security. 

In  this  view  the  defense  to  said  action  was  complete,  and  the 
complaint  should  have  been  dismissed. 

But  in  answer  to  this  view  it  was  shown  at  the  trial,  that  after 
the  execution  and  delivery  of  said  note  and  mortgage,  but  on  the 
same  occasion  and  while  the  parties  were  together,  it  was  agreed 
between  them  that  "  said  Todd  should  hold  said  note  and  mort- 
gage, as  well  for  the  security  of  the  indebtedness  of  said  Burgesg 
to  the  plaintiff  (being  a  liability  as  guarantor  in  the  sum  of  $3,500) 
as  for  his  own  claim  against  said  Burgess ; "  "  that  is  to  say,  that  said 
Todd  should  first  hold  the  same  as  collateral  security  for  h'is  own 
claim  as  aforesaid,  until  the  said  claim  should  be  discharged,  and 
thereupon  the  same  should  be  assigned  to  and  held  by  the  said 
Maria  G.  Hubbell,  as  collateral  security  for  her  said  claim  as  afore- 
said ;  and  that  Allen  Todd  accepted  and  received  said  note  and 


HUBBELL  v.  BLAKESLEE.  605 

FOURTH  DEPARTMENT,  OCTOBER  TERM,  1876. 

mortgage  upon  said  agreement  and  understanding;  and  directly 
after  the  execution  and  delivery  of  said  promissory  note  and 
mortgage  to  said  Todd,  the  terms  of  said  agreement  and  the  fact 
that  it  had  been  made  were  communicated  both  by  said  Todd  and 
said  Burgess,  jointly,  to  said  plaintiff,  who  assented  thereto ;  and  the 
agreement  was  made  without  fraud  and  in  good  faith,"  as  set  forth 
in  the  findings  of  the  judge  at  Special  Term. 

Upon  this  finding  of  fact  the  learned  judge  held,  as  matter  of 
law,  "that  the  said  Allen  Todd  and  his  legal  representatives  held 
the  said  promissory  note,  for  $3,158.72,  of  Charles  Burgess  and  the 
mortgage  in  suit,  in  part  for  the  security  for  his  own  debt  and 
partly  as  trustee  for  the  plaintiff;  and  that  said  note  and  mortgage 
were  not,  as  to  said  Charles  Burgess  and  his  other  creditors,  paid 
or  satisfied  by  the  payment  in  full  of  said  Todd's  indebtedness 
against  him  merely,  nor  until  the  payment  of  said  debt  of  the  said 
plaintiff  against  him  as  well ; "  and  gave  judgment  for  the  full 
amount  of  the  plaintiff's  debt,  with  interest  and  costs. 

The  legal  effect  of  this  decision  is,  that  a  complete  executed 
mortgage  given  as  security  for  a  debt  of  $3,158.72,  specified  iu 
said  mortgage,  is  thus  duplicated  by  parol  and  made  a  valid  and 
existing  mortgage  also,  for  another  debt  to  the  plaintiff  of  $3,500. 
Or,  in  other  words,  a  mortgage  which  upon  its  luce  is  security  for 
$3,158.72,  is  in  fact  made  by  parol  a  valid  mortgage  for  $6,658.72. 

I  cannot  see  how  this  can  be  done,  or  how  such  decision  can  be 
sustained. 

It  is  in  distinct  conflict  with  the  sixth  section  of  title  1,  chapter  7, 
part  2,  vol.  2,  page  134  of  the  Revised  Statutes,  which  is  as  follows: 
"  No  estate  or  interest  in  lands,  other  than  leases  for  a  term  not 
exceeding  one  year,  nor  any  trust  or  power  over  or  concerning 
lands,  or  in  any  manner  relating  thereto,  shall  hereafter  be  created, 
granted,  assigned,  surrendered  or  declared  unless  by  act  or  opera- 
tion of  law  or  by  deed  or  conveyance  in  writing,  subscribed  by  the 
party  creating,  granting,  assigning,  surrendering  or  declaring  the 
same,  or  by  his  lawful  agent  thereunto,  authorized  iu  writing." 

A  mortgage,  though  a  security  for  a  debt,  is  also  a  conveyance  of 
real  estate,  and  is  recorded  as  such,  and  the  registry  must  show  the 
true  amount  for  which  it  is  made  and  held. 

It  is  doubtless  true,  as  held  in  Truscott  v.  King  (6  N.  Y.,  147), 


606  ARROWSMITH  v.  ARROWSMITH. 

FOURTH  DEPARTMENT,  OCTOBER  TERM,  1876. 

and  other  oases  cited  by  plaintiff's  counsel,  that  a  mortgage  may 
be  given  or  a  judgment  confessed  to  secure  future  advances  to  the 
extent  of  it,which  will  be  effectual  as  a  security  for  such  advances 
against  subsequent  incumbrancers  having  notice  of  such  mortgage, 
or  judgment  and  advances.  But  in  these  cases  the  judgment  or 
mortgage  are  or  must  be  given  for  a  definite  amount  upon  their 
face,  and  the  advance  must  be  within  the  limits  of  such  amount. 

This  case  is  not  within  the  principle  of  that  class  of  cases  ;  it  is 
simply  an  attempt  to  tack  to  or  graft  upon  a  written  and  executed 
mortgage,  under  hand  and  seal  of  the  mortgagor,  a  parol  mortgage 
for  one  double  its  amount. 

This  I  think  cannot  be  done  directly,  or  by  any  indirection.  It 
is  in  the  teeth  of  the  statute.  (Stoddard  v.  Hart,  23  N.  Y.,  556 ; 
Bank  of  Utica  v.  Finch,  3  Barb.  Ch.  Eep.,  293.) 

No  trust  can  be  created  and  attached  to  an  existing  mortgage  in 
such  case,  that  can  make  it  a  valid  security  for  any  greater  amount 
than  that  specified  in  the  body  and  upon  the  face  thereof. 

The  judgment  should  be  reversed  and  a  new  trial  granted,  with 
costs  to  abide  the  event. 

Present  —  MULLIN,  P.  J.,  SMITH  and  TALOOTT,  JJ. 

Judgment  reversed  and  new  trial  granted,  with  costs  to  abide 
event. 


FRANK  ARROWSMITH,  APPELLANT,  v.  NELSON  ARROW- 
SMITH  AND  DEBORAH  TALLINGER,  RESPONDENTS. 

Tenancy  by  the  eurtesy  —  subject  to  debts  of  wife  —  Surrogate  —  tale  of  lands  —  Power 
of,  to  distribute  surplus. 

"Where  a  wife,  who  has  acquired  title  to  real  estate  since  the  acts  of  1848,  dies 
intestate,  her  husband  is  entitled  to  an  estate,  as  tenant  by  the  curtesy,  in  the 
lands  of  which  she  dies  seized,  subject  to  the  payment  of  her  debts. 

The  surrogate  has  power  to  direct  the  sale  of  such  lands  in  payment  of  the  debts 
of  the  deceased;  and  the  husband  will  acquire  the  same  interest  in  the  surplus 
remaining,  after  payment  of  the  said  debts,  as  he  had  in  the  land  itself. 

Although  the  surrogate  has  power  under  the  Revised  Statutes  (3  Rev.  Stat.  [6th 
ed.],  116,  and  chap.  150  of  1850),  to  order  the  investment  of  such  surplus,  on  th« 


ARROWSMITH  v.  ARROWSMITH.  607 

FOURTH  DEPARTMENT,  OCTOBER  TERM,  1876. 

ground  that  the  husband  is  entitled  to  an  estate  for  life  therein,  he  has  no  power 
to  direct  that  such  property  be  applied  in  payment  of  the  debts  of  the  husband. 
He  can  pass  upon  the  claims  of  creditors  of  the  intestate,  but  not  upon  thoa* 
af  creditors  of  the  husband. 

APPEAL  from  a  decree  of  the  surrogate  of  Monroe  county  dis- 
tiibuting  the  proceeds  arising  from  the  sale  of  the  real  estate  of 
Margaret  Arrowsmith,  intestate,  by  Nelson  Arrowsmith,  her 
administrator. 

On  the  25th  day  of  June,  1875,  Nelson  Arrowsmith,  as  adminis- 
trator of  Margaret  Arrowsmith,  petitioned  the  surrogate  of  Monroe 
county  for  leave  to  mortgage,  lease  or  sell  the  real  estate  of  which 
Maigaret  Arrowsmith  died  seized,  for  the  purpose  of  paying  her 
debvs. 

Si  ch  proceedings  were  had  as  that  on  the  10th  day  of  August, 
1875  a  sale  of  the  real  property  of  the  in  ((state  was  ordered,  and 
on  tho  fifth  day  of  November  said  property  was  sold  for  $2,625. 
Franl  Arrowsmith,  the  appellant,  becoming  the  purchaser. 

On  the  23d  day  of  February,  1876,  the  surrogate  of  Monroe 
count}  made  a  decree  distributing  the  proceeds  of  said  real  estate 
sold,  awd  it  is  from  this  decree  that  the  appeal  is  brought. 

The  surrogate,  in  the  decree,  directs  that  a  life  estate  of  Nelson 
Arrowsmith  in  the  lands  sold  be  deducted  from  the  purchase  money 
realized  on  the  sale  of  the  lands,  $2,600,  which  life  estate  the  sur- 
rogate adjudges  to  be  $1,110.69  ;  cost  of  the  proceedings,  $177.63; 
debts  ol  the  intestate,  $1,233.53 ;  balance  to  Frank  Arrowsmith, 
heir  at  law  of  intestate,  $103.15  ;  making  the  $2,625. 

He  also  directed  that  the  life  estate  adjudged  to  Nelson  Arrow- 
Binith  be  paid  to  one  Deborah  A.  Tallinger,  who  was  the  owner  of 
a  judgment  recovered  against  him  October  31st,  1866. 

On  June  20th,  1868,  Nelson  Arrowsmith  executed  and  delivered 
to  Frank  Arrowsmith  a  deed  or  instrument,  in  writing,  for  the  con- 
sideration of  $658.23,  by  which  he  transferred  to  the  said  Frank 
Arrowsmith  certain  interests  in  the  property  so  sold  by  said  Nelson 
Arrowsmith,  as  administrator,  which  he,  the  said  Nelson,  claimed 
to  hold  in  said  property. 

The  grounds  of  error  alleged  were  : 

That  the  life  estate  of  Nelson  Arrowsmith,  as  tenant  by  th* 
curtesy,  should  attach  and  be  estimated  only  in  the  surplus  of  the 


008  ARROWSMTTH  v.  ARROWSMITH. 

FOUBTH  DEPARTMENT,  OCTOBEH  TERM,  1876. 

estate,  after  paying  the  debts  of  the  intestate,  instead  of  the  whola 
amount  of  $2,625  derived  from  the  sale,  and  that  the  surrogate  had 
no  power  to  consider  and  estimate  this  life  estate. 

That  the  deed  executed  showed  only  a  conveyance,  and  there  was 
a  conveyance  only,  of  the  estate  of  Margaret  Arrowsmith.  That 
Nelson  Arrowsmith  had  not  conveyed  any  life  estate  under  these 
proceedings,  and  was  not  entitled  to  any  share  of  the  proceeds  of  the 
sale. 

That  Deborah  Tallinger,  as  assignee  of  the  judgment  against 
Nelson  Arrowsmith,  was  not  entitled  to  any  portion  of  the  proceeds 
of  this  sale  as  a  judgment  creditor,  as  aforesaid,  or  otherwise. 

That  Frank  Arrowsmith,  as  heir  at  law  of  Margaret  Arrowsmith 
and  grantee  or  assignee  of  Nelson  Arrowsmith  under  the  deed  of 
June  20th,  1868,  was  entitled  to  the  money  derived  from  the  sale 
after  paying  expenses  and  debts. 

L.  N.  Bangs,  for  the  appellant.  The  surrogate  erred  in  holding 
that  the  life  estate  claimed  by  Nelson  Arrowsmith  in  said  lands,  as 
tenant  by  the  curtesy  attached  to  the  proceeds  of  the  whole  estate, 
before  deducting  the  debts  of  the  intestate.  (1  Bouv.  Law  Dic- 
tionary, title  "  Curtesy  ;  "  id.,  title  u  Estate,"  sub.  20  ;  Watson  v. 
Watson,  13  Conn.,  83-86  ;  1  Wash.  Real  Prop.  [2d  ed.],  142 ;  id.? 
143,  §  50  ;  In  the  Matter  of  Winne,  2  Lans.,  21-23  ;  1  Bright, 
Husband  and  "Wife,  143  ;  Tyler  on  Infancy  and  Coverture,  418.) 
By  the  proceeding  to  sell  real  estate  only  the  interest  of  the  intes- 
tate can  be  sold.  Any  specific  charge  in  any  judgment  or  mortgage 
maintains  its  lien,  as  does  any  paramount  estate.  (3  R.  S.  [6th  ed.], 
113,  §  37.)  There  is  no  provision  in  the  statute,  that  an  estate  as 
tenant  by  the  curtesy  of  the  husband  is  to  be  taken  into  account, 
when  it  existed  ;  it  must  have  been  considered  as  a  paramount  estate 
covering  the  entire  property  that  descended,  and  was  recognized  as 
one  of  the  charges  classed  with  judgments  and  mortgages,  subject 
to  which  the  purchaser  takes  his  title.  If  any  estate,  as  tenant  by 
the  curtesy,  existed  in  Nelson  Arrowsmith,  it  has  not  been  sold  or 
conveyed  ;  he  has,  therefore,  no  interest  in  these  moneys  derived 
from  the  sale;  neither  has  his  judgment  creditor,  Deborah  Tallin- 
ger. ( Vandervoort  v.  Gould,  36  N.  Y.,  639-641 ;  Gage  v.  Dauchy 
34  id  ,  293-296.1 


ARROWSMITH  v.  ARROW  SMITH.  609 

FOURTH  DEPARTMENT,  OCTOBER  TERM,  1876. 

De  L.  Crittenden,  for  the  respondents.  The  common-law  estate, 
by  curtesy,  was  vested  by  the  death  of  Margaret  Arrowsmith. 
(Billings  v.  Baker,  28  Barb.,  343 ;  Beamish  v.  Hoyt,  2  Robt., 
313 ;  In  re  Winne,  2  Lans.,  21 ;  Hatfield  v.  Sneden,  54  N.  Y., 
280  ;  Young  v.  Langbein,  1  Hun,  156.)  After  the  death  of  the 
wife  this  estate  became  con  sum  mate  ;  but  only  in  that  event  can  it 
be  strictly  defined  "  as  a  continuance  of  the  wife's  estate."  (Crabb's 
L.  of  Real  Prop.,  §§  1110,  1075  ;  Roper  on  Husband  and  Wife, 
35;  In  re  Winne,  2  Lans.,  24.)  Her  debts,  unless  charged  as  spe- 
cific liens  upon  the  premises,  by  way  of  mortgage  or  judgment, 
can  in  no  manner  be  made  a  basis  for  affecting  the  interest  or  estate 
of  the  husband  in  the  entire  proceeds  of  their  sale.  A  devise  to 
executors  "for  payment  of  debts,"  does  not  affect  the  estate  of 
tenant  by  curtesy.  (1  Greenl.  Cruise  on  Real  Prop.,  title  "  Curtesy," 
156;  Guavara's  Case,  8  Rep.,  96,  a  •  4  Coke,  pts.  7  and  8,  p.  324 ; 
Robertson  v.  Stephens,  1  Iredell  Eq.  [N".  C.],  250 ;  1  Hilliard  Real 
Prop.,  7,  113.)  An  interest  of  the  husband,  as  tenant  by  the 
curtesy  initiate,  is  a  well  defined  legal  estate  which  will  exist  after 
the  wife's  death.  (4  Kent,  22-26 ;  1  Rev.  Stat,  722,  §  5.)  As 
under  attachment  during  the  joint  lives  a  judgment  against  the 
husband  operates,  at  the  instant  of  its  entry,  as  a  lien  upon  this 
legal  estate.  (Day  et  al.  v.  Cochran,  24  Miss.,  261-273,  opinion 
of  SMITH,  Ch.  J. ;  Adair  v.  Lott,  3  Hill,  186 ;  Ellsworth  v.  Cooke, 
8  Paige,  643  ;  Van  Duzer  v.  Van  Duzer,  6  id.,  366  ;  Schermerhorn 
v.  Miller,  2  Cow.,  439.)  Dower  controlled  by  statute,  not  by 
rule  85.  (2  N.  Y.  Sup.  Ct.,  485;  Robertson  v.  Morris,  11 
Ad.  &  Ell.  [N.  S.j,  916 ;  Ewell's  Lead.  Cas.,  478.)  Judgment 
binds  and  is  a  charge  upon  the  lands,  tenements,  real  estate  and  chat- 
tels real  which  the  debtor  has  either  at  the  time  of  the  docketing, 
or  which  such  person  shall  acquire  at  any  time  thereafter.  (2  Rev. 
Stat.  [Edm.  ed.],  371,  §  3 ;  Roberts  v.  Whiting,  16  Mass.,  186.) 
That  estate  became  bound  by  the  judgment  entered  October  31, 
1866,  assigned  to  respondent  Mrs.  Tallinger.  If  sold,  the  purchaser 
would  acquire  the  same  title  the  husband  could  by  grant  give  to 
his  grantee.  (In  re  Winne,  2  Lans.,  25;  Shortallv.  HickUy,  31 
HI.,  219;  Ganby  v.  Porter,  12  Ohio,  79;  2  Crabb  Real  Prop., 
119;  1  Roper  Husband  and  Wife,  35;  1  Wash.  Real  Prop.,  143.) 
Equity  will  not  interfere  in  favor  of  a  child  to  prevent  due  appli- 
HUN— VOL.  VHI.  77 


610  ARROWSMITH  v.  ARROWSMITH. 

FOURTH  DEPARTMENT,  OCTOBER  TERM,  1876. 

cation  in  favor  of  husband's  creditor  upon  this  estate.  (1  Broom 
«fc  Hadley  Com.,  50,  notes ;  Van  Duzer  v.  Van  Duzer,  6  Paige 
Ch.,  866 ;  Roberta  v.  Whitney,  16  Mass.,  186 ;  Burd  v.  Doursdole, 
2  Brim  [Penn.],  80  ;  Mattocks  v.  Steams,  9  Yt.,  326.)  Judgment 
lien  being  created  upon  the  estate  of  the  husband  previous  to  the 
sale  under  the  surrogate's  order,  became,  after  sale  consummated,  a 
lien  to  the  same  extent  upon  the  fund.  (Ellsworth,  v.  Cooke,  8 
Paige,  643.)  Appellant's  position  that  the  contracting  of  a  simple 
contract  debt  by  a  married  woman  creates  a  lien,  even  if  she 
expressly  charged  her  estate  with  its  payment  in  other  form  than 
by  mortgage  or  judgment,  is  not  tenable.  (Yale  v.  Dederer,  22 
N.  Y.,  453 ;  Ballin  v.  Dillaye,  37  id.,  35-38 ;  Maxon  v.  Scott,  55 
id.,  251.) 

E.  DARWIN  SMITH,  J. : 

On  the  decease  of  Margaret  Arrowsmith,  the  intestate,  her  hus- 
band, Nelson  Arrowsmith,  the  respondent,  undoubtedly  succeeded 
to  her  estate  as  a  tenant  by  the  curtesy.  (Hatfield  v.  Sneden, 
54  N.  Y.,  285 ;  Ransom  v.  Nichols,  22  id.,  110 ;  Barnes  v.  Under- 
wood, 47  id.,  351 ;  Matter  of  Winne,  2  Lans.,  21.)  Though  they 
were  married  before  the  passage  of  the  act  of  1848  for  the  more 
effectual  protection  of  the  rights  of  married  women,  her  title  to  the 
land  in  question  was  acquired  after  the  passage  of  that  act. 

The  respondent,  however,  took  such  estate  subject  to  the  pay- 
ment of  the  debts  of  his  wife.  During  her  life  the  property  was 
absolutely  hers  and  she  was  entitled  to  receive  the  rents  and  profits 
thereof  to  her  own  use,  and  all  debts  by  her  contracted  became  a 
charge  upon  her  property,  as  much  as  if  she  had  been  in  fact  au 
unmarried  woman. 

The  surrogate  had  full  power,  therefore,  to  order  the  sale  of  the 
lands  of  which  she  died  seized,  after  her  personal  property  was 
exhausted,  for  the  payment  of  such  debts.  The  whole  property 
might  be,  as  it  was,  sold  for  that  purpose,  and  the  interest  of  the 
respondent  was  the  same  in  respect  to  the  surplus,  after  the  pay- 
ment of  such  debts  and  the  expenses  of  the  sale,  that  it  would 
have  been  in  any  portion  of  such  lands  not  required  for  the  pay- 
ment of  such  debts  and  not  sold.  The  surplus  moneys  arising 
from  the  sale  represented  land,  and  the  surrogate  had  PO  power,  I 


ARROWSMITH  v.  ARROWSMFTH.  611 

FOURTH  DEPARTMENT,  OCTOBER  TERM,  1876. 

think,  to  dispose  of  it  definitely.  If  it  was  land  the  respondent 
would  primarily  be  entitled  to  possess  and  enjoy  it  as  tenant  by 
the  curtesy  for  his  life.  In  his  hands  it  would  be  subject  to  the 
claims  of  his  creditors,  like  other  property,  and  his  interest  in  it 
might  be  sold  on  execution. 

The  surrogate  had  no  jurisdiction  to  dispose  of  such  property  in 
payment  of  the  debts  of  the  respondent,  and  could  not  adjudicate 
such  questions.  He  could  only  pass  upon  the  claims  of  the  credit- 
ors of  the  intestate. 

Under  section  55  of  the  statute  relating  to  the  proceedings  of 
the  surrogate  in  such  cases  (3  R.  S.,  m.  p.  107  [6th  ed.,  p.  116]  ;  and 
chap.  150,  Sess.  Laws,  1850,  p.  315),  he  might  order  the  investment  of 
such  moneys  on  the  ground  that  the  respondent  was  entitled  to  the 
interest  thereof  during  his  life,  but  he  could  not  pay  them  to  him 
or  to  the  heir,  who  would  only  have  been  entitled  to  the  reversion 
of  the  land  sold  and  represented  by  such  money  upon  the  termi- 
nation of  the  life  estate. 

The  order  of  the  surrogate  is  erroneous,  therefore,  so  far  as  it 
conflicts  with  these  views.  It  was  error  to  deduct  the  estimated 
amount  of  the  value  of  the  life  estate  of  Nelson  Arrowsmith  from 
the  proceeds  of  the  sale  before  the  payment  of  the  debts  of  the 
deceased.  These  were  entitled  to  priority  of  payment.  But,  as 
the  debts  of  the  intestate  were  all  paid,  this  is  a  matter  of  no  con- 
sequence, except  so  far  as  the  decree  allows  to  the  respondent  the 
amount  of  the  balance  of  such  estate,  which  was  estimated  at 
$1,110.69,  and  directs  its  payment  to  him. 

It  was  error  to  pay  to  the  appellant  the  sum  of  $103.15,  as  the 
heir  at  law  of  the  deceased.  This  was  so  much  deducted  from  the 
surplus  arising  from  said  sale  after  payment  of  the  debts,  but  there 
is  no  appeal  in  respect  to  this  item.  The  question  whether  the 
judgment  of  Mrs.  Tallinger  was  a  charge  upon  the  surplus  fund, 
or  whether  the  deed  of  the  respondent  to  the  appellant,  dated 
June  20,  1868,  conveyed  all  the  interest  of  the  respondent  to  the 
said  appellant,  were  questions  which  could  not  be  adjudicated  by 
the  surrogate.  The  decree  of  the  surrogate  should  so  far  be  mod- 
ified, as  to  direct  him  to  hold  the  surplus  moneys  received  from 
said  sale  for  investment  as  above  stated,  subject  to  the  adjudication 


612  GREY  v.  VORHIS. 


FOURTH  DEPARTMENT,  OCTOBER  TERM,  1876. 


of  the  proper  tribunal  in  respect  to  its  disposition,  and  otherwise 
it  may  be  affirmed,  without  costs  to  either  party. 

Present  —  MDLLIN,  P.  J.,  SMITH  and  TALOOTT,  JJ. 
Ordered  accordingly. 


ELLIOTT  L.  GREY,  RESPONDENT,  *>.  ALBERT   B.  VORHIS 
AND  DAVID  T.  TILLOTSON,  APPELLANTS. 

Mechanic's  lien  —  bitt  of  particulars  —  verification  <tf. 

Where,  at  tbe  time  of  serving  a  notice  to  foreclose  a  mechanic's  lien,  a  bill  of  par- 
ticulars was  served,  sworn  by  the  claimant  to  be  "  in  all  respects  true,  to  the  best 
of  his  knowledge  and  belief."  Held,  that  the  verification  was  sufficient. 

APPEAL  from  a  judgment  in  favor  of  the  plaintiff,  entered  upon 
the  report  of  a  referee. 

The  action  was  brought  to  foreclose  a  mechanic's  lien ;  at  the  time 
of  serving  the  notice  provided  for  by  the  statute,  a  bill  of  particu- 
lars was  served,  to  which  was  attached  the  following  verification  : 

STEUBEN  COUNTY,  88. : 

Elliott  L.  Grey,  ««.,  above  named  claimant,  being  duly  sworn, 
says  that  the  bill  of  particulars  above  mentioned  is  in  all  respects 

true,  to  the  best  of  his  knowledge  and  belief. 

E.  L.  GREY. 

Sworn  to  and  subscrioed  before  me  ) 
this  15th  day  of  February,  1873.      J 

J.  H.  CONSOLAS,  Justice  of  the  Peace. 
BurreU  &  Soule,  for  the  appellant. 
A.  H.  Burrett,  for  the  respondent. 

E.  DABWIN  SMITH,  J. : 

The  referee,  I  think,  decided  correctly  the  several  questions 
raised  on  the  trial,  and  his  findings  appear  warranted  by  the 
evidence. 

The  bill  of  particulars  annexed  to  the  plaintiff 's  notice  of  claim, 
served  on  the  defendant  in  the  mode  prescribed  by  the  statute  for 


HAZARD  v.  MANNING.  613 

FOURTH  DEPARTMENT,  OCTOBER  TERM,  1876. 

the  commencement  of  this  action,  was  properly  verified.  This 
notice  and  the  bill  of  particulars  are  governed  by  the  rules  of 
pleading  prescribed  by  the  Code.  (Duffy  v.  McManus^  3  E.  D. 
Smith,  658.)  The  bill  of  particulars  in  these  cases  (Act  of  1873, 
chap.  489,  §  10),  may  be  "  verified  by  the  oath  of  the  claimant  or 
his  attorney,  to  the  effect  that  the  same  is  true." 

The  attorney  could  not  ordinarily  make  a  verification  safely 
more  positive  than  the  one  made  in  this  case.  It  is  in  the  form 
prescribed  for  verification  of  pleadings  by  the  Code.  If  the  legis- 
lature had  intended  to  require  a  verification  in  the  form  of  a  posi- 
tive allegation  that  the  bill  of  particulars  was  true,  without  quali- 
fication, they  would  have  required  it  to  be  made  by  the  party  who 
alone  could  ordinarily  make  such  verification. 

The  verification  stated  that  the  bill  of  particulars  was  in  all 
respects  true,  to  the  best  knowledge  and  belief  of  the  affiant.  No 
man  could  testify  on  the  point,  safely  and  honestly,  more  positively, 
or  should  be  required  to  do  so. 

The  plaintiff  might  recover  less  than  the  amount  claimed  in  his 
notice  and  bill  of  particulars.  The  notice  of  lien  was  duly  filed 
in  the  county  clerk's  office,  and  entered  in  the  lien  docket  therein, 
and  properly  proved. 

The  judgment  should  be  affirmed. 

Present  —  MULLIN,  P.  J.,  SMITH  and  TALOOTT,  JJ. 
Judgment  affirmed. 


GEORGE  S.  HAZARD,  AS  RECEIVES  OF  THE  NEW  YORK 
AND  ERIE  BANK,  RESPONDENT,  v.  JOHN  B.  MANNING. 
APPELLANT. 

BaiUe  —  lien  of— not  lost,  becaute  of  not  being  expretsed  in  receipt 

Jne  Briggs,  the  owner  of  certain  barley,  which  he  had  transferred  to  the  plaintiff 
as  collateral  to  a  loan,  being  desirous  of  having  the  same  malted,  an  agree- 
ment was  entered  into  between  Briggs,  the  president  of  the  plaintiff,  and  the 
defendant,  by  which  the  latter  agreed  to  malt  the  barley  and  receive  twenty 
cents  per  buahel  for  so  doing.  At  that  time  he  delivered  to  the  plaintiff  a  papei, 
by  which  he  agreed  to  hold  the  malt  subject  to  the  written  order  of  the  plain- 


614  HAZARD  v.  MANNING. 

FOURTH  DEPARTMENT,  OCTOBER  TERM,  1876. 

tiff,  nothing  being  stated  therein  as  to  the  charges  for  malting  or  any  lien 
therefor.  The  defendant  having  received  and  malted  the  barley,  refused  to 
deliver  the  same  until  his  charges  for  so  doing  were  paid.  Held,  that  the  law 
gave  him  a  lien  upon  the  malt  for  the  amount  agreed  to  be  paid,  and  that  the 
mere  absence  of  a  reservation  of  such  lien  in  the  receipt,  by  which  he  agreed 
to  hold  it  subject  to  plaintiffs  order,  did  not  deprive  him  thereof. 

APPEAL  from  a  judgment  of  the  Superior  Court  of  Buffalo, 
entered  upon  a  verdict  for  the  plaintiff  directed  by  the  court. 

H.  C.  Day,  for  the  appellant. 

E.  C.  Sprague,  for  the  respondent. 

MULLIN,  P.  J.  : 

This  action  was  commenced  in  the  Superior  Court  of  Buffalo, 
where  judgment  was  rendered  in  favor  of  the  plaintiffs. 

Prior  to  the  4th  day  of  November,  1871,  Henry  F.  Briggs  was 
indebted  to  the  N.  Y.  and  Erie  Bank  for  loans  of  money,  to  secure 
which  Briggs  had  given  a  quantity  of  whiskey  as  collateral  security. 

The  president  of  the  plaintiff  applied  to  Briggs  for  further  secur- 
ity, and  he  informed  the  president  that  he  had  in  the  Niagara  ele- 
vator a  quantity  of  barley  that  he  would  turn  out  for  that  purpose. 
Briggs  held  the  receipt  of  the  elevator  company  for  the  barley. 

Briggs  had  talked  of  malting  the  barley,  and  he  called  on  defend- 
ant and  requested  him  to  go  with  him  to  the  bank  and  there  they 
met  Gransou,  the  president  of  said  bank. 

Defendant  was  engaged  in  the  business  of  converting  barley  into 
malt,  at  his  malt-ljouse  in  Buffalo. 

Ganson  inquired  of  defendant  the  amount  of  malt  that  could 
be  made  from  1,500  bushels  of  barley,  and  was  told  they  would 
make  1,725  bushels  of  malt.  Defendant  told  him  the  price  of 
malt  and  of  barley,  and  it  was  arranged  that  Briggs  should  transfer 
to  defendant  the  elevator  receipt,  and  defendant  should  go  011  and 
malt  the  barley  and  give  to  the  bank  a  paper,  of  which  the  follow- 
ing is  a  copy  : 

"  BUFFALO,  Nw.  4,  1871. 

"  Received  in  store  in  my  malt-house,  which  is  situated  on  the 
Terrace,  in  this  city,  from  H.  F.  Briggs,  1,725  bushels  of  malt, 
which  I  am  to  hold  subject  to  written  order  of  the  New  Tort  and 


HAZARD  v.  MANNING.  615 

FOOBTH  DEPARTMENT,  OCTOBER  TKRU,  1876. 

Erie  Bank  of  this  city.     I  am  to  assume  no  risks  as  regards  fire  or 
the  elements. 

(Signed)  "JOHN  B.  MANNING." 

Briggs  indorsed  arid  delivered  to  defendant  the  elevator  receipt. 

The  defendant  testified  on  the  trial,  that  at  the  interview  in  the 
bank  between  Briggs,  defendant  and  Ganson,  plaintiff's  president, 
the  latter  requested  defendant,  as  he,  Ganson,  had  the  papers,  and 
all  the  papers  made  in  Briggs'  account,  to  give  him  a  warehouse 
receipt  for  the  malt,  giving  as  a  reason  that  he  wa»ted  the  matter 
closed  up  that  day.  He,  Ganson,  requested  Briggs  to  transfer  to 
defendant  the  elevator  receipt  and  obtain  a  policy  of  insurance  on 
the  malt,  which  should  be  secured  to  the  defendant.  The  receipt 
was  indorsed  over  to  the  defendant,  together  with  a  policy  of 
insurance. 

The  defendant  got  the  barley  and  malted  it  and  notified  Gansou 
that  lie  had  so  done,  and  presented  to  him  a  bill  for  the  same. 
Ganson  made  excuses  for  not  paying,  on  that  and  on  several  subse- 
quent occasions,  and  finally,  refused  altogether  to  pay  the  bill,  say- 
ing that  Briggs  was  the  person  who  should  pay. 

While  the  defendant  was  trying  to  get  pay  for  malting  from 
Ganson,  he  told  him  (Ganson)  he  should  charge  for  storage ;  and  in 
reply  to  the  inquiry  as  to  how  much,  he  told  him  one-fourth  of  a 
cent  a  bushel  for  each  ten  days  or  part  thereof. 

This  charge  Ganson  declined  to  pay,  but  stated  his  willingness 
to  pay  a  fair  price  for  storage,  and  made  an  offer  of  an  amount 
which  defendant  refused  to  accept. 

Plaintiff,  on  December  the  8th,  1873,  sold  to  one  Matthews  the 
malt  mentioned  in  the  foregoing  receipt,  and  gave  him  an  order  on 
defendant  requesting  him  to  deliver  the  same  to  said  Matthews. 

The  order  was  presented,  and  defendant  declared  his  readiness 
to  deliver  on  payment  of  his  charge  for  malting  and  storage,  but 
Matthews  refused  to  pay  the  same  and  defendant  refused  to  deliver. 
It  was  on  this  occasion  that  Ganson  said  he  was  willing  to  pay  a 
reasonable  price  for  storage  ;  and  something  was  said  and  done 
about  making  a  tender  to  the  defendant,  but  no  specific  sum  seema 
to  have  been  tendered. 

The  plaintiff's  counsel  objected  in  time  to  the  admission  of  the 
parol  evidence,  as  to  what  transpired  at  the  bank  between  Gansou, 


616  HAZARD  v.  MANNING. 

FOURTH  DEPARTMENT,  OCTOBER  TERM,  1876. 

defendant  and  Briggs  as  to  the  transfer  of  the  elevator  receipt, 
malting  the  barley  and  the  price  of  the  same,  as  it  tended  to  con- 
tradict the  writing  signed  by  defendant  and  delivered  to  Gauson, 
a  copy  of  which  is  above  given. 

The  evidence  was  first  taken  subject  to  the  objection,  and  after- 
wards the  objection  was  sustained  and  the  evidence  excluded 

The  defendant's  counsel  excepted,  on  the  ground  that  the  evi- 
dence excluded  does  not  tend  to  contradict  but  co  explain  the 
writing. 

The  counsel  for  the  defendant  then  asked  tJie  court  to  direct  a 
verdict  for  the  defendant,  on  the  ground  thai;  the  undisputed  evi- 
dence showed  that  plaintiff  had  failed  tc  make  a  proper  tender  to 
discharge  defendant's  lien  on  the  malt.  The  court  refused  and 
defendant's  counsel  excepted. 

The  defendant's  counsel  then  aoVed  leave  to  go  to  the  jury  on 
the  question  of  tender,  which  was  refused,  and  defendant's  coun- 
sel excepted. 

The  court  held  that  the  only  question  on  the  evidence,  on  which 
defendant  could  go  to  the  jury  was  the  one  of  damage,  to  which 
ruling  defendant's  counsel  excepted. 

The  defendant  moved  at  the  close  of  plaintiffs  evidence  for  a 
nonsuit,  on  the  grounds  : 

First.  That  plaintiff  failed  to  make  out  a  cause  of  action. 

Second.  There  is  no  evidence  of  any  tender. 

Third.  That  no  tender  was  made,  according  to  law,  of  any 
amount. 

The  motion  was  denied  and  defendant's  counsel  excepted. 

The  court  directed  the  jury  to  find  the  title  and  right  of  posses- 
sion in  the  plaintiff,  and  a  verdict  for  the  return  of  the  property  to 
the  plaintiff;  and  if  a  return  could  not  be  made  they  should  find 
for  plaintiff  for  the  value  of  the  property  at  the  time  it  was 
demanded  of  the  defendant,  with  interest  from  the  time  of  the 
demand  ;  the  amount  the  defendant  was  entitled  to  for  storage  at 
the  same  date,  with  interest.  To  each  of  said  instructions  defend- 
ant's counsel  excepted. 

The  defendant's  counsel  asked  the  court  to  charge  the  jury  that 
it  was  in  their  discretion  whether  interest  should  be  allowed.  The 
court  refused  so  to  charge,  and  defendant's  counsel  excepted. 


HAZARD  v.  MANNING  617 

FOURTH  DEPARTMENT,  OCTOBER  TERM,  1876. 

The  jury  found  a  verdict  as  directed  by  the  court.  Judgment 
was  entered  thereon,  and  from  it  the  defendant  appeals  to  this 
court,  two  of  the  judges  of  the  Superior  Courl  being  prohibited 
by  law  from  hearing  the  case. 

The  important  question  in  this  case  is,  had  the  defendant  a  lien 
on  the  malt  for  his  charges  for  converting  the  barley  into  malt? 

The  lien  for  storage  was  conceded  on  the  trial,  and  the  amount 
was  allowed  by  direction  of  the  court,  by  deducting  it  from  the 
value  of  the  malt. 

The  barley  was  transferred  to  the  defendant  by  the  consent  of 
Briggs  and  Ganson,  to  be  made  into  malt  by  him,  and  for  his  ser- 
vices he  was  to  receive  twenty  cents  per  bushel.  Briggs  and  the 
bank,  represented  by  Ganson,  were  the  only  persons  who  had 
any  interest,  legal  or  equitable,  in  the  barley.  There  was  no  agree- 
ment that  a  lien  for  the  labor,  etc.,  should  not  be  had  by  the 
defendant  for  his  charges.  Under  such  circumstances  the  defend- 
ant had,  and  has  a  lien  upon  the  malt,  and  he  is  entitled  to  the 
possession  of  it  until  that  lien  is  discharged  by  payment  of  his 
charges. 

Kent,  in  his  Commentaries  (vol.  2,  635),  says :  "  It  is  now  the 
general  rule  that  every  bailee  for  hire,  who  by  his  labor  and  skill 
has  imparted  an  additional  value  to  the  goods,  has  a  lien  upon  the 
property  for  his  reasonable  charges.  *  *  *  The  same  right  of 
a  particular  or  specific  lien  applies  to  a  miller  *  or  who- 

soever takes  property  in  the  way  of  his  trade  or  occupation,  to 
bestow  labor  or  expense  upon  it." 

The  answer  of  the  plaintiff  to  this  claim  of  lien  is,  that  by  the 
writing  given  by  defendant  to  the  plaintiff,  there  is  an  absolute 
agreement  to  deliver  the  malt  without  regard  to  a  lien  for  malting. 

It  is  true  that  the  writing  is  silent  as  to  a  lien  for  charges,  and 
that  it  contains  an  agreement  to  deliver  the  malt  to  defendant,  ou 
demand,  upon  the  written  order  of  the  plaintiff. 

No  express  agreement  was  necessary  to  create  the  lien  ;  the  lave 
gave  it  to  the  defendant  upon  his  converting  the  barley  into  malt  ; 
and  that  lien  continued  until  waived  or  discharged  by  payment. 

It  was  not  necessary  to  the  right  of  defendant  to  a  lien  that  he 
should  reserve  it  in  the  writing.     It  was  an  incident  of  the  agree- 
ment between  the  parties,  and  the  law  implies  that  the  delivery 
HUN— VOL.  VIII.         78 


618  MAXON  v.  REED. 


FOUBTH  DEPARTMENT,  OCTOBER  TERM,  1876. 


promised  to  be  made  was  upon  payment  of  the  charges,  in  the 
absence  of  any  express  waiver,  or  circumstances  from  which  a 
waiver  could  be  fairly  inferred. 

It  is  insisted  by  the  plaintiff's  counsel  that  the  evidence  of  the 
defendant  as  to  what  transpired  at  the  time  the  writing  was  signed 
and  delivered  by  the  defendant  was  incompetent,  as  it  contradicted 
the  writing  given  by  the  defendant,  in  that  the  writing  contem- 
plated and  provided  for  a  delivery  of  the  malt  without  any  condi- 
tion whatever,  whereas  the  parol  evidence  obliged  defendant  to 
deliver  to  the  plaintiff  only  on  payment  of  the  charges  of  defend- 
ant in  making  the  malt. 

If  I  am  right  in  holding  that  the  law  gave  the  lien  to  the  defend- 
ant, and  not  the  contract  between  the  parties,  the  parol  evidence 
did  not  vary  or  contradict  the  writing. 

The  defendant,  having  a  lien  on  the  malt,  was  entitled  to  hold  it 
until  it  was  discharged  by  payment. 

There  was  no  tender  of  the  charge  for  malting,  and  there  was 
therefore  no  question  for  the  jury  on  that  subject. 

The  judgment  must  be  reversed  and  a  new  trial  granted,  costs  t* 
abide  event. 

Present  —  MULLIN,  P.  J.,  SMITH  and  TALOOTT,  JJ. 

Judgment  reversed  and  new  trial  granted,  costs  to  abide  event 


LEWIS   R.   MAXON,    RESPONDENT,   v.    AARON    G.   REED, 

APPELLANT. 

Justice*  i  Court  —  objections  at  to  jurisdiction,  regularity,  etc.,  taken  in  —  duty  of 
County  Court  to  pass  upon. 

Fpon  an  appeal  to  the  County  Court  from  a  judgment  rendered  in  a  Justice's 
Court,  it  is  the  duty  of  the  former,  when  a  new  trial  is  to  be  had  before  it,  to 
pass  upon  all  questions  raised  in  the  court  below  as  to  the  jurisdiction  of  the 
justice,  the  regularity  of  the  process,  its  service  and  return,  and  whether  all  the 
proper  parties  are  before  the  court ;  and  in  case  it  refuse  so  to  do  and  compels 
the  appellant  to  proceed  with  a  new  trial,  upon  which  a  judgment  is  rendered 
against  him,  the  General  Term  will,  upon  an  appeal  from  such  judgment, 
reverse  the  same  and  direct  a  new  trial,  even  though  such  objections  were 
frivolous  and  devoid  of  merit. 


MAXON  v.  REED.  619 


FOURTH  DEPARTMENT,  OCTOBER  TERM,  1876. 


APPEAL  from  an  order  of  the  County  Court  of  Orleans  county, 
denying  a  motion  for  a  new  trial  made  upon  a  case  and  exceptions. 

Reynolds  &  Crandell,  for  the  appellant. 
Oeo.  Bullardy  for  the  respondent. 

MDLLIN,  P.  J. : 

The  plaintiff  brought  an  action  in  a  Justice's  Court  of  the  county 
of  Orleans,  to  recover  of  the  defendant  certain  penalties  imposed 
by  sections  22,  28  and  40  of  chapter  721  of  the  Laws  of  1871, 
entitled  an  act  to  amend  and  consolidate  the  several  acts  relating 
to  the  preservation  of  moose,  wild  deer,  birds  and  fish. 

The  defendant  in  his  answer  denied  the  complaint.  As  a  second 
defense,  he  alleged  the  summons  was  not  served  by  a  constable. 
For  a  third  defense,  he  alleges  that  plaintiff  brings  the  action  as  a 
game  constable  for  one-half  the  penalty  given  by  statute,  and  as  it  is 
in  the  nature  of  a  qui  tarn  action,  it  should  be  brought  in  plain- 
tiff 's  name  as  a  public  officer,  and  in  the  name  of  the  people,  they 
being  a  necessary  party.  For  a  fourth  defense,  he  alleges  that  the 
action  being  for  a  penalty,  the  summons  is  not  properly  indorsed. 
For  a  fifth  defense,  the  defendant  alleges  that  Cliauncey  Lake  is  a 
necessary  party  to  the  action. 

On  the  return  day  of  the  summons  the  parties  appeared,  and 
it  was  agreed  between  the  parties,  in  open  court,  that  defendant 
was  to  have  all  rights  to  make  any  objections  to  the  process  or 
proceedings  on  any  day  to  which  the  suit  might  be  adjourned,  as 
if  taken  on  the  return  day.  The  cause  was  then  adjourned  till 
16th  May,  1873.  On  that  day  the  parties  again  appeared,  and 
defendant  moved  to  set  aside  the  summons  and  dismiss  the  suit,  on 
the  ground  that  the  summons  is  not  properly  indorsed.  The  motion 
was  denied.  The  defendant  made  the  same  motion  on  the  ground 
that  the  action  is  brought  by  and  in  the  name  of  a  game  constable, 
who  is  entitled  to  one-half  of  the  penalty ;  it  is  therefore  a  qui  tain 
action,  and  the  other  party  in  interest  is  not  joined.  The  same 
motion  was  made  upon  the  further  ground  that  the  summons  was 
not  served  by  a  constable.  The  motions  were  denied  on  the  ground 
that  the  objections  were  not  raised  in  time. 


620  MAXON   y.   HEED. 


FOUKTH  DEPARTMENT,  OCTOBEU  TERM,  1876. 


The  cause  was  then  tried  by  a  jury,  and  a  verdict  rendered  in  favoi 
of  the  plaintiff  for  ninety-four  dollars,  and  a  judgment  entered  for 
that  sum,  with  costs.  The  defendant  appealed  to  the  County  Court 

When  the  cause  was  tried  in  the  County  Court,  the  defendant's 
counsel  moved  to  reverse  the  judgment  and  dismiss  the  proceed- 
ings, on  the  ground  that  the  parties  never  acquired  jurisdiction  of 
the  person  of  the  defendant,  for  the  following  reasons: 

First.  The  plaintiff  was  not  a  constable  or  game  constable,  or 
officer  of  any  kind. 

Second.  He  was  not  authorized  by  law  to  serve  the  summons,  and 
the  service  was  therefore  void. 

Third.  The  return  made  by  Maxon  on  the  back  of  the  summons 
is  not  in  writing,  as  required  by  law. 

Fourth.  The  endorsement  on  the  summons  by  the  parties  is  not 
in  accordance  with  law,  in  not  referring  to  either  of  the  amended 
sections  of  the  statute  under  which  a  recovery  is  sought,  and  does 
not  sufficiently  refer  to  any  statute,  and  not  being  indorsed  as  fol- 
lows :  "According  to  the  provisions  of  the  statute." 

Fifth.  The  people  should  have  been  joined  as  parties  plaintiff, 

Sixth.  The  plaintiff  cannot  bring  suit  in  his  own  name,  after 
having  acted  as  a  pretended  game  constable,  and  served  and 
returned  the  original  process  in  that  capacity. 

The  defendant's  counsel  then  offered  to  read  sundry  affidavits,  in 
relation  to  the  proceedings  before  the  justice,  to  show  that  defendant 
had  never  been  duly  elected  or  appointed  a  game  constable,  and  that 
a  majority  of  the  board  of  supervisors  of  Orleans  county  had  never 
authorized  the  election  of  a  game  constable  in  the  towns  of  that 
county  ;  and  that  one  Ball  was  elected  game  constable  in  the  town 
of  Gaines,  in  which  the  cause  of  action  arose ;  that  a  vacancy 
occurred  in  said  office,  and  three  justices  of  the  town  appointed 
Lewis  R.  Maxson  game  constable  of  said  town. 

The  plaintiff's  counsel  objected  to  the  affidavits,  on  the  grounds : 

First.  That  defendant  cannot  attack  the  service  of  the  papers  in 
•uch  collateral  way. 

Second.  That  defendant  made  a  motion  upon  return  at  a  pre- 
vious term  of  the  County  Court  at  which  the  case  was  tried,  and 
before  the  trial  began,  to  set  aside  the  papers,  and  the  motion  was 
denied,  and  the  same  question  cannot  again  be  raised. 


MAXON  v.  REED.  621 


FOURTH  DEPARTMENT,  OCTOBER  TERM,  1876. 


The  papers  used  on  such  former  return  were  produced,  and 
showed  that  the  motion  had  been  made  and  denied.  The  affidavits 
were  rejected,  and  the  defendant's  counsel  excepted. 

The  court  then  overruled  the  objection  and  denied  the  appellant's 
motion,  and  ruled  against  him  on  each  and  every  point  so  raised,  and 
held  and  decided  that  none  of  these  objections  could  now  be  consid- 
ered ;  and  that  defendant  conld  not  be  heard  on  the  appeal  to  raise  the 
question  whether  the  plaintiff  was  a  game  constable  or  not,  or  on 
any  of  the  foregoing  objections,  and  the  court  thereupon  refused 
to  allow  appellant  to  introduce  such  proof,  and  denied  his  motion, 
and  the  defendant's  counsel  excepted. 

The  only  mode  for  reviewing  the  proceedings  on  a  trial  in  a 
Justice's  Court,  is  by  appeal  to  the  County  Court. 

When  the  judgment  recovered  in  the  Justice's  Court  is  fifty  dollars 
or  less,  the  justice  is  required  to  return  to  the  appellate  court  the 
evidence,  proceedings  and  judgmen!.  "When  the  judgment  is  for 
more  than  fifty  dollars,  the  justice  is  required  to  return  the  pro- 
cess by  which  the  action  was  commenced,  with  the  proof  of  service 
thereof,  and  the  pleading,  or  copies  thereof,  the  proceedings  and 
judgment,  with  a  brief  statement  of  the  amount,  and  return  of 
the  claim  or  claims  litigated.  When  the  judgment  is  for  more 
than  fifty  dollars,  a  new  trial  is  to  be  had  in  the  County  Court, 
unless  the  appellant  shall  state  in  his  notice  of  appeal  that  the 
appeal  is  upon  questions  of  law  only.  The  recovery  in  this  canse 
before  the  justice  was  for  eighty-five  dollars,  and  there  was  DO 
notice  in  the  notice  of  appeal  that  the  appellant  sought  to  review 
questions  of  law  only. 

A  new  trial  was  the  only  remedy  the  appellant  had  to  correct 
errors,  if  any,  committed  on  the  trial  before  the  justice.  It  fol- 
lows that  the  questions  raised  on  the  trial,  by  the  defendant,  before 
the  justice,  as  to  the  form  of  the  process,  the  regularity  of  its  ser- 
vice and  return,  whether  the  proper  parties  had  been  brought  in, 
and  which  the  justice  had  refused  to  entertain  and  decide,  must  be 
heard  by  the  appellate  court,  or  the  defendant  was  wholly  without 
remedy. 

A  solemn  agreement  had  been  entered  into  between  the  parties, 
in  the  presence  of  the  court,  that  the  defendant  might,  on  any  day 
to  which  the  cause  should  be  adjourned,  raise  any  objection  to  the 


622  MAXON  v.  REED. 


FOURTH  DEPARTMENT,  OCTOBER  TERM,  1S76. 


process,  etc.,  with  the  same  force  and  effect  as  if  raised  on  the 
return  day ;  yet,  in  violation  of  this  agreement,  the  court  refused 
to  hear  the  objections  of  the  defendant  on  the  adjourned  day,  on 
the  very  point  as  to  which  his  rights  were  reserved.  This  was 
grossly  unfair  and  unjust  to  the  defendant,  and  should  have  led  to 
a  reversal  of  the  judgment,  unless  the  County  Court  could,  on  the 
hearing  of  the  appeal,  afford  the  defendant  relief. 

Questions  in  relation  to  the  regularity  of  process,  its  service  and 
return,  in  relation  to  the  jurisdiction  of  the  justice,  and  whether 
the  proper  parties  have  been  brought  in,  and  a  multitude  of  other 
important  questions,  must  be  raised  in  the  Justice's  Court,  and  if 
not  there  raised,  are  waived;  but  if  raised,  and  an  appeal  is  taken, 
the  appellate  court  must  review  the  action  of  the  court  below  upon 
such  questions  ;  and  it  is  therefore  the  duty  of  the  Justice's  Court 
to  state  in  its  return  what  questions  were  raised  before  it,  and  its 
rulings  in  regard  thereto,  and  the  appellate  court  must,  if  required 
to  do  so,  proceed  and  pass  upon  all  such  questions. 

In  this  case  the  court  refused  to  pass  upon  the  questions  raised 
by  the  appellant's  counsel  in  the  court  below,  and  compelled  him 
to  proceed  to  the  trial  of  the  cause,  without  making  any  disposition 
of  them. 

The  County  Court  having  neglected  to  dispose  of  the  questions 
relating  10  the  form,  etc.,  of  the  process,  and  other  questions  affect- 
ng  the  jurisdiction  of  the  court,  this  court  cannot  review  its 
action  until  it  has  considered  and  passed  upon  such  questions. 
It  may  be  that  they  are  frivolous,  but  the  defendant  had  the  right 
to  have  them  passed  upon  by  the  County  Court,  and  then  by  this 
court,  but  until  the  County  Court  has  passed  upon  them  this  court 
cannot  consider  them. 

The  judgment  must  therefore  be  reversed.  (Code,  §  360 ;  2 
Wait's  L.  and  P.,  770,  798, 809,  811,  83<5.) 

Present  —  MULLIN,  P.  J.,  SMITH  and  TALOOTT,  JJ. 

Judgment  reversed  and  new  trial  granted  in  County  Court,  costi 
to  abide  event 


PARMELEE  ».  PEOPLE.  623 

FOXJBTH  DEPABTMENT,  OCTOBER  TEBM,  1876. 


EDWARD  H.  PARMELEE,  PLAINTIFF  IN  ERKOB,  v.  THE 
PEOPLE  OF  THE  STATE  OF  NEW  YORK,  DEFENDANTS 

IN  ERROR. 

Forgery — Prisoner's  belief  in  his  authority  to  sign  paper — Cross-examination. 

Where  a  person  is  indicted  for  affixing  the  name  of  another  person  to  a  written 
instrument  without  authority,  he  is  entitled  to  an  acquittal  if  it  appear  that  he 
had  fair  grounds  for  believing  that  he  had  such  authority,  even  though  hi  fact 
he  had  not 

Upon  the  trial  of  the  plaintiff  in  error  for  forging  his  father's  name  to  a  note,  the 
father  testified  that  some  tune  before  the  son  had  applied  for  leave  to  use  hi> 
name  ;  that  he  had  refused  to  allow  him  to  do  so  ;  that  he  might  have  given 
him  encouragement,  but  did  not  intend  to  authorize  him  to  use  his  name  ; 
that  he  could  not  state  the  conversation.  Upon  his  cross-examination  the 
counsel  for  the  prisoner  asked  him  if  he  was  willing  to  swear  that,  from  what 
he  did  say,  the  prisoner  had  no  right  to  infer  that  he  intended  to  give  him 
authority  to  use  his  name,  which  question  was  excluded.  Held,  that  this  was 
error ;  that  the  question  was  proper  to  test  the  degree  of  confidence  the  witness 
had  in  the  accuracy  of  his  memory. 

WRIT  of  error  to  the  Court  of  General  Sessions  of  the  county 
of  Genesee. 

The  prisoner  was  indicted  by  the  grand  jury  of  the  county  of 
Genesee  for  forgery  in  signing  the  names  of  Harvey  Parmelee,  his 
father,  and  of  Myron  Parmelee,.  his  brother,  as  makers,  to  a  note  for 
$600,  payable  six  months  from  date  to  Windsor  Arnold,  or  bearer, 
with  intent  to  defraud  said  Harvey  and  Myron  and  Arnold,  the 
payee  of  said  note. 

On  the  trial  in  the  Court  of  Sessions  it  was  proved  on  the  part 
of  the  People,  by  said  Harvey  and  Myron,  that  their  names  affixed 
to  said  note  were  not  in  their  handwriting  but  were  in  the  handwrit- 
ing of  the  prisoner,  and  that  they  never  authorized  him  to  affix 
their  names  to  said  note. 

The  prisoner's  counsel,  on  the  cross-examination  of  Harvey 
Parmelee,  put  to  him  the  following  question  : 

You  are  not  willing  to  swear,  are  you,  but  from  what  you  did 
say,  he  had  the  right  to  infer  that  you  gave  him  authority  to  use 
your  name  ? 

The  district  attorney  objected  to  the  question.  The  court  sus- 
tained the  objection  and  the  prisoner's  counsel  excepted. 


63/4  PARMELEE  v.  PEOPLE. 

FOURTH  DEPARTMENT,  OCTOBER  TERM,  1876. 

The  jury  found  the  prisoner  guilty.  His  counsel  caused  to  be 
prepared  a  bill  of  exceptions,  which  was  signed  by  the  judges  of 
said  Court  of  Sessions,  and  the  case  is  brought  into  this  court  by 
writ  of  oertiorari. 

J.  A.  Stutt,  for  the  plaintiff  in  error. 

C.  Fitch  Bissell,  for  the  defendants  in  error. 

MULLLN,  P.  J. : 

To  entitle  a  prisoner  to  a  verdict  of  not  guilty  upon  an  indictment 
for  affixing  the  name  of  another  person  to  a  written  instrument  with- 
out authority,  it  is  not  necessary  he  should  prove  express  authority 
to  affix  the  name  of  such  other ;  it  is  enough,  that  from  the  facts 
proved  it  is  made  out  that  he  had  fair  grounds  for  considering  that 
he  had  such  authority."  (Rex  v.  Forbes,  7  C.  &  P.,  224 ;  Reg.  v. 
Parish,  8  id.,  94;  Same  v.  Beard,  id.,  142.) 

In  the  case  last  cited  COLERIDGE,  J.,  says:  If  a  person  had 
reasonable  grounds  for  believing  from  the  acts  of  the  party  that  lie 
had  authority  to  accept,  and  did  in  point  of  fact  act  upon  that,  it 
oould  not  be  forgery. 

Harvey  Parmelee,  one  witness  whose  name  is  alleged  to  be  forged, 
testified,  on  direct-examination,  that  he  never  authorized  the  pris- 
oner, or  any  one  else,  to  affix  his  signature  to  the  note. 

On  cross-examination  he  testified  that  he  haxl  signed  paper  to  aid 
the  prisoner,  and  that  he,  the  prisoner,  applied  to  the  witness  to 
allow  him  to  use  his,  witness',  name.  He  could  not  state  any  of  the 
conversation.  He  says,  I  may  have  given  him  encouragement,  but 
did  not  intend  to  authorize  him  to  use  my  name. 

The  witness  subsequently  testified  that  no  application  was  made 
to  him  to  allow  the  prisoner  to  use  his  name.  He  also  said  he  did 
not  think  he  gave  the  prisoner  encouragement  that  he  might 
use  his  name,  but  he  said  something  that  he  might  have  taken  aa 
encouragement. 

If  the  prisoner  might  have  taken  the  language  of  his  father  as 
encouragement  that  he  would  allow  him  to  use  his  name,  it  must 
be  assumed  that  he  did  take  it  as  encouragement,  or  as  partial  con- 
sent to  use  his  name. 


BROWN  v.  CONUER.  625 

FOUKTH  DEPARTMENT,  OCTOBER  TERM,  1876. 

The  witness  declared  himself  unable  to  state  any  part  of  the 
conversation  in  which  the  father  used  language,  which  the  prisoner 
might  have  taken  as  encouragement  that  he  might  use  his  name;  it 
became  proper,  on  cross-examination,  to  ascertain  the  degree  of 
confidence  he  had  in  the  accuracy  of  his  memory,  as  to  the  meaning 
and  effect  of  what  he  did  say  in  answer  to  the  request  to  allow  the 
use  of  his  name.  In  the  absence  of  the  language  used  there  was 
no  other  way  to  ascertain  what  ground  the  prisoner  had  for  believ- 
ing he  had  authority  to  use  his  father's  name,  than  by  the  question 
put  to  the  witness  and  which  was  excluded. 

In  view  of  the  relation  between  the  prisoner  and  the  father,  the 
inability  of  the  latter  to  state  any  portion  of  the  conversation 
between  them,  when  leave  was  asked  by  the  former  to  use  the 
father's  name,  the  question  put  by  the  prisoner's  counsel  on  cross- 
examination  was  competent  and  should  have  been  allowed  to  be 
answered. 

The  conviction  must  be  reversed  and  a  new  trial  had  in  the 
Court  of  Sessions,  to  which  the  proceedings  are  remitted. 

Present  —  MULLIN,  P.  J.,  SMITH  and  TALCOTT,  JJ. 

Conviction  reversed  and  new  trial  ordered  in  Court  of  General 
Sessions  of  county  of  Genesee,  to  which  the  proceedings  are 
remitted. 


ANNIE  J.  BROWN,  PLAINTIFF,  «.  ANSON  G.  CONGER, 
AS  EXECUTOR,  ETC.,  OF  ISAAC  0.  BROWN,  DECEASED, 
DEFENDANT. 

Statute  of  frauds —  Contract  in  consideration  of  marriage  — partial  performance — 
Chap.  375  of  1 849  —  Practice  —  when  exceptions  may  be  ordered  to  be  heard  in  tht 
first  instance  at  the  General  Term. 

"Where  a  man  agrees  by  parol  to  give  a  woman  certain  property  in  consideration 
of  her  marrying  him,  the  subsequent  marriage  is  not  such  a  partial  perform- 
ance of  the  contract  as  will  induce  a  court  of  equity  to  compel  a  specific  per- 
formance thereof,  notwithstanding  the  provisions  of  the  statute  of  frauds. 

The  third  section  of  chapter  375  of  1849,  providing  that  all  contracts  made  between 
persons  in  contemplation  of  marriage  shall  remain  in  full  force  after  such  mar- 
HUN— VOL.  VIII.  79 


626  BROWN  v.  CONGER. 

FOURTH  DEPARTMENT,  OCTOBER  TERM,  1876. 

riage,  was  not  intended  to  repeal  the  provisions  of  the  statute  of  frauds,  declar 
ing  that  every  agreement  made  upon  consideration  of  marriage  shall  be  void 
unless  it  be  in  writing. 

Where  the  complaint  is  dismissed  at  the  Circuit,  the  court  may  direct  the  plain- 
tiff's exception  to  such  disposition  of  the  case  to  be  heard  in  the  first  instance  at 
the  General  Term,  and  that  judgment  be  suspended  in  the  mean  time. 

Hoagland  v.  J/Hfcr  (16  Abb.  Pr.,  108)  not  followed. 

MOTION  for  a  new  trial  on  exceptions  ordered  to  be  heard  in  the 
first  instance  at  the  General  Term,  after  an  order  dismissing  the 
complaint  herein. 

Abram  Thorn,  for  the  plaintiff. 

i 

S.  C.  Adams,  for  the  defendant. 

MTJLLIN,  P.  J. : 

The  plaintiff  alleges  in  her  complaint  that  on  or  about  the  27th 
day  of  August,  1868,  it  was  mutually  agreed  by  and  between  her 
and  Isaac  C.  Brown  that  they  would  intermarry,  and  in  consider- 
ation thereof  he  agreed  to  pay  the  plaintiff  one-third  of  his  prop- 
erty of  every  kind,  which  he  stated  was  of  the  value  of  $13,000  and 
upwards.  In  consideration  of  which  promise  of  said  Brown,  plain- 
tiff consented  to,  and  did  intermarry  with  him,  and  had  lived  and 
cohabited  with  him  until  his  death,  in  May,  1872.  It  was  further 
alleged  in  said  complaint  that  said  Brown  left  a  last  will,  in  and  by 
which  he  appointed  the  defendant  executor  thereof;  that  said  will 
was  duly  proved  before  the  surrogate  of  Erie  county,  who  had  juris- 
diction to  admit  the  same  to  probate,  and  defendant  took  upon 
himself  the  duties  of  said  office;  that  plaintiff  presented  to  said 
executor  a  claim  for  the  one-third  of  the  estate  of  the  said  Brown, 
but  he  rejected  said  claim. 

The  defendant,  by  his  answer,  took  issue  upon  the  alleged  agree- 
ment to  give  to  plaintiff  one-third  part  of  his  estate,  and  set  up  aa 
ft  defense  that  this  agreement  was  void,  not  being  in  writing. 

On  the  trial  the  plaintiff  gave  evidence  by  parol,  tending  to 
prove  the  matters  alleged  in  the  complaint,  and  rested.  Where- 
upon the  defendant's  counsel  moved  for  a  nonsuit,  on  the  ground 
that  the  promise,  not  being  in  writing,  was  void  by  the  statute  of 
frauds. 


BROWN  v.  CONGER.  t>27 

FOURTH  DEPARTMENT,  OCTOBER  TEUM,  1876. 


The  court  granted  the  motion  aiiJ  nonsuited  the  plaintiff,  to 
which  ruling  and  decision  plaintiff's  counsel  excepted. 

The  court  ordered  that  the  motion  for  a  new  trial  on  the  plain- 
tiff's exceptions  be  heard  in  the  first  instance  in  the  General  Term. 

By  the  third  subdivision  of  section  2  of  the  statute  known  as  the 
statute  of  frauds,  it  is  provided  that  every  agreement,  promise  or 
undertaking  made  upon  consideration  of  marriage,  except  mutual 
promises  to  marry,  shall  be  void,  unless  such  agreement  or  some 
note  or  memorandum  of  it  be  in  writing  and  subscribed  by  the 
party  to  be  charged  therewith. 

In  the  following  cases  the  Court  of  Appeals  has  held  contracts 
entered  into  between  a  man  and  a  woman  before  marriage  by  which 
the  man  agreed  to  deliver  property  to  the  wife,  or  to  do  some  act  for 
her  benefit  after  the  marriage,  were  void  when  the  marriage  was 
the  only  consideration  for  the  promise :  Dygert  v.  Remerschni- 
der  (32  N.  Y.s  629) ;  Dung  v.  Parker  (52  N.  Y.,  496).  The  same 
was  held  by  the  chancellor  in  the  Matter  of  Willoughby  (11 
Paige,  257). 

It  is  urged  by  the  appellant's  counsel  that  the  marriage  in  pur- 
suance of  the  ante-nuptial  agreement  is  such  a  part  performance,  as 
that  a  court  of  equity  will  euljrce  the  parol  contract  notwithstand- 
ing the  statute  of  frauds. 

The  counsel  refers  to  no  case  which  supports  this  proposition. 
Indeed,  the  cases,  as  far  as  I  have  examined  them,  are  all  the  other 
way. 

In  Fry  on  Specific  Performance,  263,  it  is  said  marriage  is  not 
alone,  a  part  performance  of  an  agreement  in  relation  to  it.  To 
hold  this  would  be  to  overrule  the  statute  of  frauds.  (Id.,  249  ; 
Lassence  v.  Tierney,  1  McN.  &  G.,  551 ;  Brown  on  the  Statute  of 
Frauds,  §§  439,  440,  444,  449.) 

In  1849  the  legislature  passed  an  act  entitled  "  An  act  to  amend 
an  act  for  the  more  effectual  protection  of  the  property  of  married 
women,"  passed  April  llth  of  that  year,  the  third  section  of  which 
is  in  the  following  words  : 

Section  3.  All  contracts  made  between  persons  in  contemplation 
of  marriage  shall  remain  in  full  force  after  such  marriage  takes  place. 

This  section,  the  plaintiff's  counsel  insists,  repeals  the  clause  of 
the  statute  of  frauds  above  cited,  and  hence  contracts  founded  on 


628  BROWN  v.  CONGER. 

FOURTH  DEPARTMENT,  OCTOBER  TERM,  1876. 

the  consideration  of  marriage  were  no  longer  to  be  in  writing,  in 
order  to  be  valid. 

It  is  quite  manifest  that  the  legislature  did  not  intend  to  repeal 
the  clause  of  the  statute  of  frauds  under  consideration. 

That  clause  was  inserted  in  the  statute  to  protect  parties  from 
being  bound  by  parol  contracts  alleged  to  be  made  before  marriage, 
the  inducement  to,  or  consideration  of  which  was  a  future  marriage. 
The  same  temptation  to  fraud  and  perjury  was  held  out  to  one  <>.• 
other  of  the  parties  that  the  preceding  provisions  of  the  statute 
were  intended  to  prevent.  If  there  was  any  adequate  reason  for 
the  repeal  of  the  third  clause  it  applies  with  equal  force  to  the  pre- 
ceding clauses.  The  legislature  has  adhered  with  too  much  tenacity 
to  the  statute  of  frauds  to  justify  the  belief  that  it  intended,  in  pass 
ing  the  act  of  1849,  to  repeal  any  of  its  provisions. 

It  would  be  a  great  public  calamity  should  the  clause  of  the 
statute  under  consideration  be  repealed. 

Before  the  passing  of  the  act  of  1849  contracts  between  a  man 
and  a  woman  entered  into  before  marriage  were,  as  a  general 
rule,  void  upon  the  consummation  of  the  marriage,  without  regard 
to  the  subject-matter  of  the  contract  or  the  equitable  considera- 
tions that  would  require  its  enforcement.  (Curtis  v.  Brooks,  37 
Barb.,  476;  1  Black  Com.,  442  and  notes;  2  Kent's  Com.  [12th 
ed.],129.) 

It  was  to  get  rid  of  this  harsh  and  oppressive  rule  of  law  that  the 
third  section  of  the  act  of  1849  was  passed,  and  its  operation  should 
not  be  extended  beyond  that. 

When  the  case  in  32  New  York,  630,  arose  and  was  decided  the 
act  of  1849  was  in  force,  and  if  the  court  had  been  of  the  opinion 
that  the  third  clause  of  the  statute  of  frauds  had  been  repealed,  the 
learned  judge  delivering  the  opinion  would  not  have  been  permit 
ted  to  assert,  without  some  of  the  members  of  the  court  dissenting 
from  the  proposition,  that  marriage  alone  did  not  constitute  a  valid 
consideration  for  a  contract. 

That  case  must  be  deemed  to  be  an  adjudication  of  the  court  of  last 
resort,  that  the  third  clause  of  the  statute  of  frauds  has  not  been 
repealed. 

The  plaintiffs  counsel  calls  our  attention  to  the  case  of  HoaglancL 
v.  Miller  (16  Abb.  Pr.,  103),  in  which  the  General  Term  of  the 


BROWN  v.  CONGEli.  629 

FOURTH  DEPARTMENT,  OCTOBER  TERM,  1876. 

first  district  held,  that  it  is  a  mistrial  to  direct  that  an  exception  to 
the  dismissal  of  the  complaint  be  heard  at  the  General  Term  in  the 
first  instance. 

I  am  unable  to  comprehend  the  roi-on  for  the  conclusion  at 
which  the  learned  judge  arrived  in  the  case  cited.  None  are 
assigned  by  the  judge  who  delivered  the  opinion,  other  than  that 
he  says  he  knows  of  no  authority  for  directing  the  exception  to  be 
heard  in  the  first  instance  in  the  General  Term. 

Section  265  of  the  Code  contained  the  same  provisions  in  1863, 
when  that  case  was  decided,  that  are  in  it  now,  and  as  I  understand 
the  section,  it  expressly  authorized  the  court,  before  which  the  cause 
was  tried,  to  send  the  exceptions  to  the  General  Term  to  be  heard  in 
the  first  instance. 

The  court  at  the  trial  dismissed  the  complaint  and  the  plaintiff's 
counsel  excepted  to  the  ruling,  and  it  was  this  exception  that  was 
ordered  to  be  heard  in  the  first  instance  at  the  General  Term. 

The  plaintiff  was  bound  to  except  to  the  ruling,  or  he  could  not 
avail  himself  of  the  error,  if  it  was  one,  to  dismiss  his  complaint. 

Section  265  provides  that  a  motion  for  a  new  trial  on  a  case  and 
exceptions  or  otherwise  must,  in  the  first  instance,  be  heard  or 
decided  at  the  Circuit  or  Special  Term,  except  that  when  exceptions 
are  taken  the  judge  trying  the  cause  may,  at  the  trial,  direct  them 
to  be  heard  at  the  General  Term  in  the  first  instance,  and  the  judg- 
ment in  the  mean  time  is  suspended,  and  in  that  case,  they  must  there 
be  heard  in  the  first  instance  and  judgment  there  given. 

There  was  then  an  exception  by  the  plaintiff's  counsel  to  an  order 
of  the  court  dismissing  the  complaint,  thus  bringing  die  case 
within  the  very  terms  of  the  section. 

We  are  compelled  to  decline  to  follow  the  case  cited,  believing  as 
we  do  that  the  practice  of  the  plaintiff  was  entirely  correct. 

The  motion  for  a  new  trial  is  denied  and  judgment  of  nonsuit 
ordered  for  the  plaintiff. 

Present  —  MULLIN,  P.  J.,  SMITH  and  TALOOTT,  JJ. 

New  trial  denied  and  judgment  of  nonsuit  ordered  for  plaintiff 


030  CHOUSE  v.  PADDOCK. 

FOURTH  DEPARTMENT,  OCTOBER  TERM,  1876. 


DANIEL    GROUSE    AND    OTHERS,    RESPONDENTS,    w.    OSCAR 
PADDOCK  AND  ELIAS  F.  COOPER,  APPELLANTS. 

Arrest  pending  suit  —  undertaking  —  liability  of  sureties  on,  v>her«  one  only  of  too 
defendants  can  be  arrested  on  execution. 

Two  defendants  having  been  arrested,  in  an  action  brought  against  them  by  the 
plaintiff,  the  defendants  in  this  action  executed  an  undertaking  to  procure  their 
discharge.  Subsequently,  upon  an  execution  issued  against  their  persons  upon  a 
judgment  recovered  in  the  first  action,  the  sheriff  arrested  one  and  returned  as  to 
the  other  non  est  iwoentus.  In  an  action  upon  the  undertaking,  held,  that  the  arrest 
and  imprisonment  of  one  defendant  did  not  relieve  the  sureties  to  the  under 
taking  from  their  liability  for  the  escape  of  the  other. 

APPEAL  from  a  judgment  in  favor  of  the  plaintiff,  entered  upon 
the  trial  of  this  action  by  the  court  without  a  jury. 

Charles  P.  Crosby,  for  the  appellant.  The  plaintiffs  could  not 
have  maintained  an  action  against  both  Paddock  and  Audrus  npon 
the  judgment  they  recovered,  so  long  as  Andrus  remained  imprifr 
oned  on  an  execution  issued  upon  such  judgment.  (Chapman  v 
Hyatt,  11  Wend.,  41.)  And  if  both  Paddock  and  Andrus  had 
been  imprisoned  on  such  execution,  the  plaintiffs  could  not  have 
maintained  an  action  against  the  defendants  as  bail  for  them,  so 
long  as  such  imprisonment  continued.  (Sunderland  v.  Loader,  5 
Wend.,  "58.)  A  release  of  one  of  several  joint  debtors  releases  all. 
(Huffman  v.  Dunlap,  1  Barb.,  185.)  A  release  of  one  of  several 
joint  wrong-doers  releases  all.  (Bronson  v.Fitzhugh,  1  Hill,  185.) 
If  the  plaintiffs  had  released  Andrus  from  the  judgment  against 
himself  and  Paddock,  such  release  would  have  operated  to  dis- 
charge Paddock  also.  So  long  as  Andrus  remains  imprisoned  on 
execution  the  judgment  is  surely  satisfied  as  to  him,  as  effectually  as 
if  the  plaintiffs  had  released  him  therefrom.  It  is  submitted  that 
under  the  authorities  the  imprisonment  of  Andrus  satisfies  the  judg- 
ment pro  tern,  against  both  Andrus  and  Paddock.  It  is  no  answer 
to  say  that  we  were  bound  to  produce  both  judgment  debtors,  and 
have  only  produced  one.  This  we  concede,  but  we  claim  that  by 


GROUSE  v.  PADDOCK.  631 

FOURTH  DEPARTMENT,  OCTOBER  TERM,  1876. 

accepting  Andrus  alone  upon  our  bond  to  produce  them  jointly  the 
ordinary  rule  applies,  and  that  during  the  imprisonment  of  Andrus 
the  judgment  against  him  and  Paddock  is  satisfied  as  to  us,  whose 
undertaking  is  collateral  to  the  judgment,  and  also  for  the  reason 
that  the  imprisonment  of  Andrus,  while  it  continues,  is  a  discharge 
of  our  liability,  as  bondsmen  for  him  and  for  Paddock  jointly.  The 
plaintiff  might  have  avoided  this  by  refusing  to  accept  of  Andrus 
alone.  He  could  have  sued  us  for  our  failure  to  produce  the 
defendants  Andrus  and  Paddock  jointly,  as  our  bond  called  on  ua 
to  do.  Not  having  done  this,  but  having  treated  our  bond  as  one 
for  the  delivery  of  Andrus  and  Paddock  severally,  he  must  abide 
the  consequences. 

Edwa/rd  H.  Risley,  for  the  respondents. 

MULLIN,  P.  J. : 

The  plaintiff  brought  an  action  in  the  Supreme  Court  against 
George  F.  Paddock  and  Merritt  Andrus,  and  obtained  an  order 
of  arrest  on  which  they  were  arrested,  and  they  were  discharged 
from  the  arrest  on  giving  the  undertaking  upon  which  this 
action  is  brought :  that  the  said  Paddock  and  Andrus  should,  at  all 
times,  render  themselves  amenable  to  the  process  of  the  court 
during  the  pendency  of  the  action,  and  to  such  as  might  be  issued 
to  enforce  the  judgment  therein. 

Judgment  was  recovered  in  the  action  against  Paddock  and 
Andrus,  and  an  execution  thereon  issued  to  the  sheriff  of  Jeffer- 
son county,  who  returned  the  same  unsatisfied. 

Thereafter  an  execution  was  issued  against  the  bodies  of  Pad- 
dock and  Andrus,  on  which  Andrus  was  arrested  and  imprisoned ; 
but  as  to  Paddock,  the  ca.  sa.  was  returned  non  est  inventus. 

Thereupon  the  plaintiffs  brought  an  action  against  the  defend- 
ants, as  sureties  in  the  undertaking  given  to  release  Paddock  and 
Andrns  from  imprisonment. 

Paddock  put  in  an  answer  alleging,  amongst  other  things,  in  bar 
of  the  action  as  to  him,  the  arrest  and  imprisonment  of  Andrua 
on  the  ca.  sa. 

The  judge  at  the  Circuit  held  that  the  arrest  and  imprisonment 
of  Andrus  did  not  preclude  the  plaintiffs  from  proceeding  against 


632         SHAFT  v.  PHOENIX  MUTUAL  LIFE  INS.  CO 
FOUBTH  DKPABTMKNT,  OCTOBEB  TERM,  1876. 

Paddock  to  enforce  the  debt,  and  ordered  judgment  for  the  plaintiff 
against  the  defendant. 

It  is  well  settled  that  the  imprisonment  of  a  sole  defendant  is  a 
satisfaction  of  the  debt  while  it  continues.  (Sunderland  v.  Loder, 
5  Wend.,  59  ;  Chapman  v.  flatt,  11  id.,  41.) 

But  I  find  no  case  in  which  it  has  been  held  that  the  imprisonment 
of  one  operates  as  a  satisfaction  to  his  co-defendant.  The  cases 
cited  by  appellant's  counsel  do  not  support  the  proposition. 

The  case  of  Penn  v.  Remsen  is  decisive  of  the  question.  (24 
How.,  503.) 

The  judgment  must  be  affirmed. 

Present  —  MULLIN,  P.  J.,  SMITH  and  TALCOTT,  JJ. 
Judgment  affirmed. 


HENRY  SHAFT,  ADMINISTRATOR,  ETC.,  RESPONDENT,  v.  THE 
PH03NIX  MUTUAL  LIFE  INSURANCE  COMPANY, 
APPELLANT. 

Policy  of  insurance  —  power  of  agent  —  ratification  of  acts  of,  by  company. 

A  policy  of  insurance  was  issued  to  the  plaintiff's  intestate,  upon  which  was 
printed  a  notice  that  the  agent  had  no  authority  to  receive  any  premium  after 
the  date  of  its  becoming  due,  without  special  permission  from  the  officers  of  the 
company.  On  the  twenty-sixth  of  July,  the  agent  wrote  to  the  deceased  stat- 
ing that  the  amount  of  the  premium  due  July  twelfth  was  seven  dollars  and 
eighty-eight  cents,  and  that  the  same  might  be  sent  by  mail.  Between  the  twenty- 
sixth  and  thirtieth  of  July  this  amount  was  sent  to  the  agent,  who  acknowledged 
the  receipt  thereof  on  the  thirtieth,  and  sent  the  renewal  receipt.  The  insured 
died  on  the  first  of  August.  The  company  received  the  premium,  and  never 
returned  or  offered  to  return  the  same.  In  an  action  upon  the  policy  the  com  - 
pany  claimed  that  the  agent  had  no  authority  to  receive  the  premium.  Upon  the 
trial  no  evidence  was  given  as  to  the  authority  of  the  agent.  Held,  that  the  acts 
of  tae  agent  and  the  company,  in  accepting  and  retaining  the  premium,  were 
such  as  to  authorize  the  finding  that  he  was  authorized  to  receive  the  same  and 
to  deliver  the  renewal  receipt  therefor. 

Under  the  circumstances,  it  was  not  incumbent  upon  the  insured  to  apply  himself 
to  the  company,  in  order  to  ascertain  whether  it  had  authorized  the  agent  tc 
receive  the  premium  and  deliver  the  renewal  receipt  therefor. 


SHAFT  v.  FHCENIX  MUTUAL  LIFE  INS.  CO.          63S 

FOURTH  DEPARTMENT,  OCTOBER  TERM,  1876. 

MOTION  for  a  new  trial,  on  exceptions  ordered  to  be  heard  in  the 
first  instance  at  the  General  Terra,  after  a  verdict  directed  in  favor 
of  the  plaintiff. 

Hand,  Hale,  Swartz  &  Fairchild,  for  the  appellant. 
Jfeardsley,  Cookingham  &  Burdick,  for  the  respondent. 

MULLIN,  P.  J. : 

This  action  was  brought  to  recover  $1,000  on  a  life  insurance 
policy,  issued  by  the  defendants  upon  the  life  of  William  E.  Shaft. 
The  policy  was  dated  twelfth  April ;  the  premiums  were  payable 
quarterly.  Indorsed  on  the  policy  delivered  to  the  insured  was  the 
following,  viz. :  The  assured  will  please  take  notice  that  no  receipt 
for  premiums  on  this  policy  is  valid,  unless  signed  by  the  president 
or  secretary  of  the  company  at  Hartford,  Connecticut,  and  that  no 
agent  has  authority  to  receive  any  premiums  without  first  present- 
ing a  regularly  signed  receipt  from  the  president  or  secretary,  or  to 
interline  or  otherwise  change  any  policy,  or  to  receive  any  premium 
after  date  of  its  being  due,  without  special  permission  from  the 
officers  of  the  company. 

A  quarterly  payment  came  due  on  the  policy  on  the  12th  July, 
1873.  It  was  not  paid.  The  agent,  who  received  the  application 
through  whom  the  company  communicated  with  the  assured,  wrote 
to  the  latter  a  letter  dated  the  26th  July,  1873,  informing  him  that 
he  (the  agent)  had  received  a  renewal  of  the  policy,  and  that  the 
amount  due  was  seven  dollars  and  eighty-eight  cents,  which  sum  he 
could  send  by  mail.  On  some  day  between  the  26th  and  30th 
July,  1873,  the  amount  called  for  by  the  policy  as  the  premium 
due  on  the  twelfth  July  was  sent  to  the  agent,  and  the  receipt 
of  it  acknowledged  by  him  on  the  thirtieth.  In  the  same  letter 
was  inclosed  the  renewal  receipt. 

The  insured  died  on  the  first  of  August ;  the  letter  and  receipt 
were  received  some  days  after  his  death.  A  recovery  on  the  policy 
is  resisted  on  the  ground,  amongst  others,  that  the  premium  not 
having  been  paid  on  the  twelfth  July  the  policy  became  void,  and 
could  not  be  renewed  or  continued  without  permission  of  the  com- 
pany, and  no  such  permission  was  ever  obtained. 

The  answer  to  the  objection  to  a  recovery  is,  that  the  premium 


684         SHAFT  v.  PHOENIX  MUTUAL  LIFE  INS.  CO. 

FOTTBTH  DEPARTMENT,  OCTOBER  TERM,  1876. 

was  paid  to  the  agent  at  Utica,  and  by  him  remitted  to  the  agent 
at  Albany  and  has  been  retained,  and  neither  returned  nor  offered 
to  be  returned  by  the  defendant. 

The  insured  was  fully  informed  of  the  want  of  authority  of  an 
agent  to  accept  the  premium  after  the  day  on  which  it  waa  pay- 
able. A  notice  to  that  effect  was  printed  on  the  back  of  the 
policy.  But  the  agent  might  accept  it  if  he  had  special  authority 
so  to  do  from  the  company.  There  is  no  evidence  in  the  case  as  to 
whether  he  had  such  authority.  Under  ordinary  circumstances  it 
would  be  incumbent  on  the  insured  to  prove  the  authority,  if  he 
relied  upon  a  renewal  by  acceptance  by  an  agent  after  the  day  of 
payment  had  passed.  In  the  ordinary  course  of  business  the 
insured  deals  with  the  agent,  applies  to  him  for  and  receives  the 
policy  from  him,  and  makes  to  him  all  payments  of  premiums 
unless,  perhaps,  he  resides  in  the  place  where  the  principal  office  of 
the  company  is  situated. 

It  was  competent  for  the  company  to  accept  the  payment  after 
the  day,  and  the  insured  might  make  the  venture  and  pay  the  pre- 
mium to  the  agent,  leaving  him  to  obtain  the  consent  of  the 
company. 

When  he  pays  the  agent  and  a  renewal  receipt  is  received  by 
him  from  the  agent,  he  has  the  right  to  assume  that  the  agent  has 
sent  the  receipt  with  the  knowledge  and  approbation  of  the 
company. 

The  money  and  the  receipt,  in  the  ordinary  course  of  business, 
pass  through  the  agent's  hands.  The  insured,  on  the  receipt  of 
the  renewal  receipt,  might,  by  way  of  precaution,  inquire  of  the 
agent  whether  the  officers  had  given  him  special  authority  to 
deliver  the  receipt,  and  if  he  should  answer  in  the  affirmative,  and 
the  company  should  keep  the  money,  it  would  not  be  contended 
that  the  renewal  was  not  valid. 

The  conduct  of  the  agent  and  of  the  company  in  this  case  was 
just  as  high  evidence  that  the  officers  of  the  company  had  con- 
sented to  the  acceptance  of  the  premiums  by  the  agent,  as  if  it  had 
been  uttered  in  words. 

The  agent  knows  as  well  as  the  insured  that  he  has  no  authority 
to  deliver  a  renewal  receipt  without  the  approval  of  the  company, 
when  the  premium  was  over  due. 


SHAFT  v.  PHCENIX  MUTUAL  LIFE  INS.  CO.          635 
FOURTH  DEPARTMENT,  OCTOBER  TERM,  1876. 

When  he  accepted  the  premium  it  was  his  duty  to  iuform  the 
company  of  it,  and  obtain  their  approval  if  he  could,  and  it  was  only 
in  the  event  that  he  obtained  it,  that  he  was  authorized  to  deliver 
the  receipt.  The  delivery  of  it  was  equivalent  to  a  declaration 
that  he  had  applied  for  and  obtained  such  consent. 

The  insured  could  not  get  access  to  the  correspondence  that 
passed  between  the  agent  and  the  company.  He  must  depend 
entirely  upon  the  acts  and  declarations  of  the  agent. 

It  may  be  said  it  was  the  duty  of  the  insured  to  apply  to  the 
company  itself  in  order  to  ascertain  whether  the  acceptance  of 
the  premium  by  the  agent  was  approved.  This  he  was  not  obliged 
to  do,  and  it  would  be  a  serious  annoyance  if  any  such  practice 
should  be  sanctioned,  not  only  to  the  insured,  but  to  the  company 
itself. 

Agents  are  appointed  to  stand  between  the  company  and  those 
insured  by  it,  and  the  action  of  the  company  is  learned  through  the 
agent. 

It  seems  reasonable  and  just  that  in  a  case  like  this  it  should  be 
held  that  the  agent  was  bound  to  consult  the  company,  as  to 
whether  he  should  accept  the  premium  and  deliver  the  renewal 
receipt,  and  if  consent  was  refused,  then  it  was  his  duty  to  notify 
the  insured  of  it ;  and  if  not  done,  and  especially  if  the  premium  paid 
"  is  not  returned,  but  kept  by  the  company,  the  company  should  be 
deemed  to  have  assented. 

The  plaintiff  was  not  informed  that  the  policy  was  not  properly 
renewed  until  26th  September,  1873,  when  Fillow,  an  agent  of  the 
defendant,  called  on  him  and  informed  him  that  the  policy  was 
void. 

When  the  evidence  was  closed  the  court  inquired  of  the  counsel 
whether  there  was  any  question  of  fact  they  desired  to  be  sub- 
mitted to  the  jury .  No  request  to  submit  any  question  was  made,  and 
the  court  assumed  that  neither  party  desired  a  submission.  He 
therefore  ordered  a  verdict  for  the  plaintiff,  and  directed  the  excep- 
tions to  be  heard  in  the  first  instance  in  the  General  Term. 

The  court,  with  the  acquiescence  of  counsel,  assumed  to  deter- 
mine the  question  of  fact.  These  questions  were :  1st.  Whether 
the  insured  was  guilty  of  misrepresentations  as  to  his  health  in  his 
application  for  insurance.  2d.  Whether  the  release  defendant 


036  HILL  y.  CARLEY. 


FOURTH  DEPARTMENT,  OCTOBER  TERM,  1876. 


obtained  from  the  plaintiff  was  obtained  by  the  fraud  of  th« 
defendant's  agent. 

On  these  questions  I  think  the  decision  of  the  court  was  correct. 
No  fraud  is  proved  as  to  the  first  question  of  fact,  but  it  is  clearly 
proved  as  to  the  second. 

The  defendant's  counsel  excepted  to  the  order  that  the  jury  ren- 
der a  verdict  for  the  plaintiff,  and  a  verdict  was  thereupon  ren- 
dered for  the  amount  of  the  policy,  less  $150,  which  had  been  paid 
by  defendant  to  the  plaintiff  as  the  consideration  for  the  release. 

The  motion  for  a  new  trial  should  be  denied  and  a  judgment 
ordered  for  plaintiff  on  the  verdict. 

Present  —  MULLIN,  P.  J.,  SMITH  and  TALOOTT,  JJ. 
New  trial  denied. 


BOBEKT  E.  HILL,  HARYEY  ROBINSON  AND  ALFRED 
HIGGINS,  RESPONDENTS,  v.  E.  CLARK  CARLEY,  IMPLEADED 
WTTH  LUCIEN  E.  GRAIN  AND  JOHN  J.  WHEATON, 
APPELLANTS. 

fraudulent  representations — made  to  the  agent  of  one  firm  —  when  acted  upon  by 
another  firm,  by  whom  such  agent  is  afterward  employed  —  liability  for. 

The  firm  of  Lynde  Bros.,  in  order  to  induce  a  firm  in  Buffalo  to  sell  them  goods, 
made  certain  false  and  fraudulent  representations  as  to  their  financial  condition 
to  Robinson,  the  salesman  of  the  Buffalo  firm.  Subsequently  the  plaintiffs 
succeeded  to  the  business  of  said  Buffalo  firm,  and  retained  Robinson  in  their 
employment.  Shortly  after  Lynde  Bros,  applied  for  other  goods,  which  were 
sold  to  them  by  Robinson,  he  relying  upon  the  representation  previously  made 
by  them.  In  an  action  by  the  plaintiffs  to  recover  the  goods  so  sold,  on  the 
ground  that  they  were  procured  through  fraudulent  representation,  held,  that 
they  were  not  entitled  to  recover;  that,  in  order  to  maintain  such  action,  the 
representations  must  be  made  to  the  vendors,  or  to  some  person  acting  in  their 
behalf,  while  in  this  case  the  representations  were  made  to  the  agent  cf 
another  firm,  and  before  that  of  the  plaintiffs  came  into  existence. 

APPEAL  from  a  judgment  in  favor  of  the  plaintiffs,  entered  upoc 
the  report  of  a  referee  in  an  action  of  replevin. 


HILL  v.  CABLET.  637 


FOURTH  DEPARTMENT,  OCTOBER  TERM,  1876. 


B.  T.  Wright,  for  the  appellants. 
Irving  O.  Vann,  for  the  respondents. 

MULLIN,  P.  J. : 

The  action  is  replevin  for  a  quantity  of  goods  sold  by  the  plain- 
tiffs to  the  Messrs.  Lynde  Brothers,  of  Marathon,  in  the  county  of 
Oortland,  upon  false  representations,  as  is  alleged,  of  the  ability  of 
the  purchasers  to  pay  for  them,  The  price  of  the  goods  was 
$162.40. 

Harvey  Robinson  was  a  son  of  one  of  the  plaintiff's  firm,  and 
intrusted  by  the  firm  with  determining  to  whom  sales  on  credit 
should  be  made.  Robinson  had  been  in  the  employ  of  a  firm  that 
preceded  plaintiffs  in  the  business.  The  Messrs.  Lynde  had  traded 
with  the  older  firm  and  had  not  met  promptly  their  notes. 

One  of  the  Messrs.  Lynde,  in  January  or  February,  1873, 
applied  to  Robinson,  who  was  in  the  employ  of  such  former  firm, 
to  sell  them  a  bill  of  goods  on  credit.  Robinson  said  to  him  that 
it  had  been  rumored  that  they  (the  Lynde  Brothers),  were  pretty 
close  up  for  money,  and  were  being  bothered  to  meet  their  bills. 
He  (Lynde)  said  they  had  been,  somewhat.  Robinson  told  him 
he  did  not  wish  to  make  the  account  any  larger,  as  they  recently 
asked  to  renew  notes ;  and  he  remarked  to  Robinson  that  every 
thing  was  all  right  now ;  that  they  had  been  looking  over  their 
accounts  and  goods  and  found  themselves  in  better  shape  than  they 
expected.  Robinson  asked  him  about  the  indorsement  of  his 
father  on  the  note  they  wanted  to  renew.  He  (Lynde)  remarked 
that  that  was  all  right  now,  it  made  the  paper  good.  Robinson 
asked  him  what  he  thought  was  the  difference  between  their  liabil- 
ities and  their  assets.  He  said  he  thought  their  assets  were  at 
least  $3,000  above  their  liabilities.  Robinson  told  him  he  did  not 
wish  to  injure  his  feelings  in  any  way  by  speaking  of  it,  and  if 
they  were  in  that  shape,  would  be  willing  to  sell  them  all  the  goods 
they  needed.  He,  Lynde,  again  remarked,  you  need  have  no  fears  ; 
you  shall  never  lose  a  cent  by  us. 

Subsequently,  in  March,  1873,  the  Messrs.  Lynde  applied  to  one 
of  plaintiffs'  traveling  agents  for  a  quantity  of  goods  on  credit. 
The  order  was  transmitted  to  plaintiffs,  and  by  them  handed  over 


638  HILL  v.  CARLEY. 


FOURTH  DEPARTMENT,  OCTOBER  TERM,  1876. 


to  Robinson  to  decide  whether  the  credit  should  be  given.  Rely 
ing  on  the  truth  of  the  representations  made  the  winter  before,  he 
consented  to  sell  them,  and  did  sell  them,  and  deliver  to  them  a 
bill  of  goods  on  credit  to  the  amount  of  $162.40. 

On  the  5th  April,  1873,  the  Lynde  Brothers  made  a  general 
assignment  of  their  property  to  the  persons  named  as  defendants  in 
this  action.  On  examination,  it  was  ascertained  that  they  assigned 
property  only  sufficient  to  pay  twenty-five  per  cent  of  their 
liabilities. 

The  referee  finds  that  when  the  representations  were  made  to 
Robinson  the  partners  knew  they  were  insolvent. 

The  plaintiff,  in  bringing  the  action,  proceeded  on  the  assump- 
tion that  the  sale  was  fraudulent,  and  that  title  to  the  property  had 
not  passed  to  the  purchasers,  by  reason  of  the  fraud.  To  establish 
the  fraud,  the  plaintiffs  called  Robinson,  who  was  asked  to  state 
the  representations  made  to  him  by  one  of  the  firm  of  Lynde 
Brothers.  The  evidence  was  objected  to  as  incompetent,  as  being 
between  persons  not  parties  to  the  action.  The  objection  was 
overruled  and  the  testimony  received. 

At  the  close  of  the  plaintiffs'  evidence,  the  defendants  moved 
for  a  nonsuit,  on  the  ground,  amongst  others,  that  there  is  no 
proof  that  the  Messrs.  Lynde,  or  either  of  them,  made  any  false 
or  fraudulent  representations  to  the  plaintiffs  to  procure  the  goods 
in  question.  The  motion  was  denied,  and  the  defendants'  counsel 
excepted. 

To  render  a  sale  void,  because  of  false  or  fraudulent  representa- 
tions, it  is  essential  that  they  be  made  to  the  vendor,  or  to  some 
other  person,  to  be  communicated  to  him.  (  Van  Kleeck  v.  Le  Roy* 
37  Barb.,  544;  1  Wait's  L.  and  P.,  504;  Murfey  v.  Brace,  23 
Barb.,  561 ;  Durbrow  v.  McDonald,  5  Bos.,  131.) 

When  the  representations  were  made  to  Robinson,  the  plaintiffs' 
firm  was  not  in  existence,  and,  of  course,  Robinson  was  in  no  way 
connected  with  them.  The  evidence  fails,  therefore,  to  prove  that 
the  Messrs.  Lynde  ever  made  any  false  or  fraudulent  representa- 
tions to  the  plaintiffs. 

The  case  of  Van  Kleeck  v.  Le  Ray  seems  to  us  to  be  decisive  of 
the  question  ;  and  as  a  new  trial  must  be  granted,  because  of  refus 


NORCOTT  t>.  FIRST  BAPTIST  CHURCH  OF  ROME.    639 
FOUBTH  DEPABTMENT,  OCTOBEE  TEEM,  1876. 

ing  to  nonsuit  the  plaintiffs,  it  is  unnecessary  to  consider  the  other 
questions  presented  by  the  appellants'  points. 

The  judgment  must  be  reversed,  and  a  new  trial  granted,  costs  tc 
abide  the  event,  and  the  order  of  reference  must  be  vacated. 

Present  —  MULLIN,  P.  J.,  SMITH  and  TALCOTT,  JJ. 

Judgment  reversed  and  new  trial  granted,  costs  to  abide  event. 


ANDREW  O.  NOROOTT  AND  WILLIAM  B.  NOROOTT. 
APPELLANTS,  v.  THE  FIRST  BAPTIST  CHURCH  OF 
ROME,  IMPLEADED  .WITH  WILLIAM  R.  WILLIAMS, 
RESPONDENT. 

Mechanic's  lien — bid  of  particulars  — effect  of  failure  to  serve. 

If,  in  an  action  brought  to  foreclose  a  mechanic's  lien,  the  plaintiffs  fail  to  serve 
with  the  notice  the  bill  of  particulars  required  by  section  10  of  chapter  402  of 
1854,  the  remedy  of  the  defendant  is  to  move,  before  answering,  to  set  aside 
the  proceedings,  or  stay  them  until  such  service  be  made. 

Such  defect  is  waived  by  the  service  of  an  answer,  and  cannot  be  taken  advan- 
tage of  upon  the  trial. 

APPEAL  from  a  judgment  dismissing  the   proceedings   herein 
entered  upon  the  report  of  a  referee. 

The  action  was  brought  to  foreclose  a  mechanic's  lien  filed  under 
chapter  402  of  the  Laws  of  1854. 

W.  J£ernan,  for  the  appellants. 
Johnson  <&  Preseott,  for  the  respondent. 

MULLIN,  P.  J. : 

Appeal  from  judgment  in  an  action  to  foreclose  a  mechanic's 
lien. 

At  some  time  prior  to  the  5th  October,  1872,  W.  R.  Williams 
entered  into  a  contract  with  the  Baptist  Society  of  Rome  to  fur- 
nish the  material,  and  erect  and  finish  a  church  edifice  for  the  use 
of  said  society,  the  roof  of  which  was  to  be  covered  with  slate. 


(340    NORCOTT  v.  FIRST  BAPTIST  CHURCH  OF  ROME. 
FOURTH  DEPARTMENT,  OCTOBER  TERM,  1876. 

On  the  last  mentioned  day  the  plaintiffs  entered  into  a  contract, 
in  writing,  with  said  Williams  to  furnish  the  slate  to  cover  said 
roof,  and  lay  the  same,  for  which  they  were  to  receive  $940. 

At  some  time  prior  to  the  twenty-ninth  of  September,  the  plain 
tiffs  filed  a  notice  of  lien  on  the  said  church  in  the  office  of  the  clerk 
of  Oiieida  county,  to  the  amount  of  $940  and  interest  from  the 
30th  of  January,  1873,  when  said  contract  was  completed  by  them 
for  the  slate,  and  labor  in  laying  the  same  under  said  contract  of 
the  5th  October,  1872.  In  this  notice  the  church  is  called  the 
First  Baptist  Church  of  Rome. 

In  May,  1872,  the  plaintiffs  served  on  the  Baptist  Church  of 
Rome  a  notice  alleging  the  making  of  the  contract  with  Williams  ; 
that  they  had  performed  the  contract  on  their  part  entered  into 
with  Williams,  a  copy  of  which  was  annexed  to  the  notice,  and 
that  the  sum  of  $940  was  due  them,  and  that  they  had  filed  a 
notice  of  lien  required  by  the  statute  within  twenty  days  of  the 
completion  of  said  contract,  and  requiring  said  church  to  appear  in 
the  Supreme  Court  at  the  end  of  twenty  days  from  the  service  of 
the  notice,  and  submit  to  an  accounting  and  settlement  in  said  court 
of  the  amount  due  or  claimed  to  be  due  to  them,  for  the  labor  done 
and  materials  furnished  under  the  contract  with  Williams. 

The  petition,  or  claim,  as  it  is  called  in  the  affidavit  annexed  to 
the  same,  then  proceeds  as  follows:  The  bill  of  particulars  and 
claim  is  for  the  labor  and  materials  named  in  said  contract 
annexed,  and  said  contract  is  referred  to  for  said  bill  of  particulars. 

It  then  asked  judgment  that  said  lien  may  be  enforced  under  the 
statute  relating  to  mechanics'  liens,  or  that  said  house  be  sold  to 
pay  the  same  and  costs,  or  that  the  officers  of  the  church  be 
ordered  to  pay  said  amount  out  of  any  moneys  of  the  church  in 
their  hands  not  paid  over  to  said  Williams. 

At  the  foot  of  the  said  papers  is  an  affidavit,  of  which  the  follow- 
ing is  a  copy : 

Andrew  O.  Norcott,  one  of  the  above  named  claimants,  being 
duly  sworn,  says  that  he  has  heard  the  foregoing  petition  or  claim 
read  and  knows  the  contents  thereof,  and  the  same  is  true  of  his 
own  knowledge  except  as  to  those  matters  therein  stated  on  informa- 
tion and  belief,  and  as  to  those  matters  he  believes  it  to  be  true. 

The  church  put  in  an  answer  denying  performance  of  the  con 


KORCOTT  v.  FIRST  BAPTIST  CHURCH  OF  ROME,    (j 


FOURTH  DEPABTMENT,  OCTOBER  TERM,  1876. 


tract  by  Williams  to  erect  and  finish  the  church,  but  alleging  that 
he  had  left  the  same  unfinished  ;  that  the  work  was  defectively 
done,  and  denying  that  there  was  any  thing  due  him.  Other 
defenses  were  set  up  that  are  not  material  to  be  considered  here. 

The  case  was  referred,  and  on  the  trial  the  objection  was  taken, 
among  others,  that  the  plaintiffs  had  not  served  a  bill  of  particulars 
at  the  same  time  with  the  notice,  and  that  by  reason  of  such  omis- 
sion the  proceedings  were  so  defective  that  plaintiffs  were  not  enti- 
tled to  judgment  nor  to  give  evidence  of  their  claim. 

The  referee  so  held  and  ordered  judgment  for  the  defendants, 
dismissing  the  proceedings,  with  costs 

Section  6  of  chapter  402  of  the  Laws  of  185"4  provides  that  the 
person  having  a  lien  for  labor  or  materials  may  bring  an  action  in 
the  Supreme  Court,  when  the  amount  exceeds  fifty  dollars,  to 
enforce  said  lien,  which  action  shall  be  commenced  by  serving  a 
notice  containing  a  statement  of  the  facts  constituting  the  claim 
and  the  amount  thereof,  on  the  owner  of  the  property  or  his  agent, 
requiring  said  owner  to  appear  in  person  or  by  attorney  within 
thirty  days  after  such  service  and  answer  the  same,  or  he  will  take 
judgment,  etc. 

By  the  next  section  it  is  provided  that  within  thirty  days  after 
service  of  said  notice  and  bill  of  particulars,  the  defendant  shall 
personally  serve  the  claimant  or  his  attorney  with  a  copy  of  hia 
answer,  duly  verified,  to  the  effect  that  the  same  is  in  all  respects 
true  or  his  default  may  be  entered. 

Section  10  provides  that  at  the  time  of  serving  said  notice  a  bill 
of  particulars  of  the  amount  claimed  to  be  due  from  such  owner, 
verified  by  the  oath  of  the  claimant  or  his  attorney,  to  the  effect 
that  the  same  is  true,  shall  be  served  on  the  owner. 

It  will  be  seen  that  by  section  6  the  action  is  commenced  by  the 
service  of  the  notice  provided  for  in  that  section,  nothing  being 
said  about  a  bill  of  particulars.  Section  10  requires  the  service  of 
the  bill  of  particulars,  with  the  notice,  and  by  section  7  the  time 
for  answering  is  reckoned  from  the  date  of  the  service  of  the  notice 
and  bill  of  particulars. 

The  question  before  us  is  whether,  conceding  that  no  bill  of  par- 
ticulars was  served  with  the  notice,  the  referee  was  right  in  refus- 
ing to  hear  the  plaintiffs'  evidence  and  dismissing  the  proceedings. 
HUN—  VOL.  VIII.  81 


642    NORCOTT  v.  FIRST  BAPTIST  CHURCH  OF  ROME. 
FOURTH  DEPARTMENT,  OCTOBER  TERM,  1876. 

The  defendant,  by  serving  an  answer  to  the  notice  or  complaint, 
waived  the  error  committed  in  not  serving  the  bill  of  particulars. 

The  service  of  the  notice  is  the  commencement  of  the  action, 
And  the  service  of  the  bill,  is  not  essential  to  its  commencement. 

The  notice  sets  forth  the  nature  of  the  claim,  and  the  bill  only 
gives  the  details  or  particulars  of  it. 

Section  10  compels  the  plaintiff  to  do  what  the  defendant,  after 
the  commencement  of  the  action,  might  compel  him  to  do. 

I  am  unable  to  perceive  why  the  service  of  a  bill  required  by 
section  10,  should  be  held  to  be  any  more  important  than  the  ser- 
vice of  a  bill  in  any  other  form  of  action. 

The  omission  to  serve  the  bill  with  the  notice  could  only  be 
taken  advantage  of  by  motion,  before  answer,  to  set  aside  the  pro- 
ceedings or  stay  them  until  such  service  was  made. 

Such  a  motion  not  being  made,  the  defect  was  waived  by  answer- 
ing. The  question  could  not  be  raised  on  the  trial. 

The  judgment  must  be  reversed  and  new  trial  granted  before 
another  referee. 

Present  —  MULLIN,  P.  J.,  SMITH  and  TALOOTT,  J J. 

Judgment  reversed  and  new  trial  granted  before  another  referee, 
costs  to  abide  event. 


OP 


OASES    NOT    REPORTED    IN    FULL. 


WILLIAM   D.   SHEEMAN,  PLAINTIFF,  v.  THE   TOWN   OF 
HAMBUEG,  DEFENDANT. 

Claims  against  town  —  right  to  sue  —  Town  auditors  —  Board  of  Supervisors  — 
Commissioner  of  highways. 

MOTION  for  a  new  trial  on  exceptions  ordered  to  be  heard  in  the 
first  instance  at  the  General  Term,  after  an  order  directing  the 
dismissal  of  the  complaint  on  the  ground  that  it  did  not  state  facts 
sufficient  to  constitute  a  cause  of  action. 

This  action  was  brought  by  the  plaintiff  to  recover  his  costs  ami 
disbursements,  incurred  in  defending  himself  in  an  action  brought 
against  him,  while  in  the  discharge  of  his  official  duty  as  commis- 
sioner of  highways  of  the  town  of  Hamburg,  in  said  county. 

In  1869  the  defendant,  by  a  former  commissioner  of  highways, 
took  proceedings  under  the  statute  to  open  a  highway,  and  filed 
and  recorded  an  order,  pursuant  to  statute,  with  the  town  clerk  of 
that  town,  opening  up  the  highway. 

In  March,  1870,  the  plaintiff  was  elected  commissioner  of  high- 
ways, and  found  the  record  of  the  highway,  and  took  proceedings 
to  have  the  same  opened,  and  removed  the  obstructions. 

In  September,  1870,  one  Hannah  Cockle  commenced  an  action 
against  him  for  removing  the  obstructions  on  the  line  of  the  high- 
way, claiming  that  the  proceedings  taken  in  carrying  out  the  high- 
way were  irregular.  A  judgment  was  recovered  therein  for  some- 
thing over  $300,  damages  and  costs. 

This  plaintiff  brought  this  action  to  recover  the  costs  and  dis- 
bursements incurred  in  the  defense  of  that  suit ;  and  the  judge  at 
Circuit  dismissed  the  complaint,  holding  that  the  town  was  not  lia- 
ble to  the  plaintiff  for  his  expenses  in  defending  the  suit  against 


644    PRESBYTERIAN  SOC.  OF  KNOXBORO  v.  BEACH. 
FOURTH  DEPARTMENT,  OCTOBER  TERM,  1876. 

him,  and  ordered  the  exceptions  taken  to  be  heard  in  the  first 
instance  at  the  General  Terra. 

The  court  at  General  Terra  say  :  "  The  nonsuit  was  clearly 
properly  granted  at  the  Circuit.  The  plaintiff'  could  not  maintain 
an  action  against  the  town  for  the  costs  and  expanses  of  the  litiga- 
tion incurred  and  paid  by  him,  as  stated  in  his  complaint,  within 
the  cases  of  Bell  v.  The  Town  of  Esopus  (49  Barb.,  506),  and 
Marsh  v.  The  Town  of  Little  Valley  (4  N.  Y.  S.  C.,  116). 

The  claim  was  unliquidated.  If  the  town  auditors  have  not,  the 
board  of  supervisors  of  the  county  have  ample  power,  and  it  is 
their  duty  to  audit  the  accounts  of  town  officers  against  their  respect- 
ive towns,  and  direct  the  raising  of  such  sums  as  may  be  necessary 
to  defray  the  same.  (1  R.  S.,  367.) 

If,  in  a  proper  case,  thet  town  auditors  or  the  board  of  supervis- 
ors neglect  or  refuse  to  audit  and  allow  a  just  and  legal  claim  of  a 
town  officer,  the  party  has  an  ample  remedy  by  mandamus. 

The  motion  for  a  new  trial  should  be  denied." 

New  trial  denied. 

Walker  &   Titus,  for  the   plaintiff.     A.  C.   Calkins,  for  the 
defendant. 

Opinion  by  SMITH,  J. 

Present  —  MTTLLIN,  P.  J.,  SMITH  and  TALOOTT,  JJ. 

Motion  for  new  trial  denied,  and  judgment  ordered  upon  the 
nonsuit. 


THE    PRESBYTERIAN    SOCIETY   OF   KNOXBORO, 

APPELLANT,  v.  JACOB  BEACH,  RESPONDENT. 

Subscription — for  erection  of  church — payments  to  be  made  to  treasurer  to  b* 
appointed  by  subscribers  —  not  enforceable  by  church  corporation,  created  after  sub- 
scription. 

APPEAL  from  a  judgment  entered  upon  an  order  setting  aside  the 
verdict  of  a  jury  and  dismissing  the  complaint  herein,  and  from  an 
order  denying  a  motion  for  a  new  trial,  made  upon  a  case  and 
exceptions. 


PRESBYTERIAN  SOC.  OF  KNOXBORO  y.  BEACH.    645 

FOURTH  DEPABTMKNT,  OCTOBER  TERM,  1876. 

This  action  was  brought  to  enforce  a  subscription  by  the  defend- 
ant, of  $250  for  the  purpose  of  erecting  "  a  Presbyterian  church 
edifice "  in  the  village  of  Knoxboro.  The  Presbyterians  and 
Methodists  had  alternately  occupied,  for  purposes  of  public  wor- 
ship, a  building  in  that  village  belonging,  so  far  as  appears,  not  to 
any  religious  corporation  or  society,  but  to  citizens  of  both  persua- 
sions. Most  of  the  persons  of  the  Presbyterian  denomination 
belonged  to,  or  were  members  of  the  Presbyterian  society  at  Augusta 
Center,  a  neighboring  village.  The  defendant,  with  many  other 
subscribers,  was  a  member  of  the  Methodist  church,  and  the  project 
of  building  a  Presbyterian  church  edifice,  seems  to  have  been 
founded  on  the  understanding,  that  those  persons  of  the  Presbyte- 
rian persuasion  who  were  interested  in  the  ownership  of  the  build- 
ing which  had  theretofore  been  occupied  by  the  two  denominations, 
should  relinquish  all  their  right  and  title  therein  to  the  Methodists, 
and  an  express  written  condition  to  that  effect  accompanied  the 
subscription.  The  difficulty  in  complying  with  this  condition,  or 
the  delay  likely  to  be  occasioned  by  a  compliance  with  it,  seems  to 
have  led  to  a  misunderstanding  between  the  two  denominations, 
and  after  some  negotiation  on  the  subject,  between  committees  of 
the  two  denominations,  the  Presbyterians  proceeded  to  erect  a 
church  edifice  on  ground  and  according  to  plans  of  their  own  selec- 
tion. The  defendant,  amongst  others,  protesting  that  he  would 
not  pay  his  subscription. 

The  contract  (subscription)  on  which  the  action  was  brought,  was 
in  the  following  form  : 

"  We,  the  undersigned  subscribers,  believing  that  the  erection  of 
a  church  edifice  in  the  village  of  Knoxboro  is  required  for  the 
promotion  of  both  the  convenience  and  benefit  of  the  inhabitants  of 
said  village  and  vicinity,  hereby  agree  to  pay  the  sums  set  opposite 
our  respective  names  to  a  treasurer  to  be  appointed  by  us,  for  the 
purpose  of  building  a  Presbyterian  church  edifice  in  said  village  of 
Knoxboro,  payable,  one  quarter  on  each  of  the  following  days,  viz., 
1st  April,  1st  July,  1st  October,  1872,  and  1st  January,  1873  ; 
provided  the  sum  of  $6,000  is  subscribed,  otherwise  our  subscrip- 
tions are  not  binding." 

Dated  Knoxboro,  New  York,  4th  March,  1872. 

To  this  paper,  numerous  names  purported  to  be  subscribed,  for 


646    PRESBYTERIAN  SOC.  OF  KNOXbORO  y.  BEACH. 
FOURTH  DEPARTMENT,  OCTOBER  TERM,  1876. 

various  amounts,  and  amongst  others  that  of  the  defendant  for 
$250.  Neither  the  subscription  nor  the  evidence  in  the  case 
showed  that  at  the  time  of  the  signing  of  the  subscription  the 
organization  of  any  corporation  was  contemplated  or  expected. 
The  plaintiff  was  not  then  in  existence  as  a  corporation.  The  pre 
liminary  meeting  for  the  organization  of  the  plaintiff  as  a  corpora- 
tion was  not  held  until  the  tenth  of  April. 

The  court  at  General  Term  say :  "  The  first  question  which 
naturally  presents  itself  is,  upon  what  principle  can  the  plaintiff 
maintain  any  action  to  recover  the  subscription  by  the  defendant  ? 

"  The  contract  is  not  with  the  plaintiff  or  any  of  its  officers,  or 
in  any  manner  for  its  use.  The  contract  is  to  pay  a  treasurer  to  be 
appointed  by  the  subscribers,  not  the  treasurer  of  the  plaintiff,  in 
whose  election  or  appointment  the  defendant  and  many  other  sub- 
scribers could  have  no  voice.  Assuming  a  treasurer  to  have  been 
appointed  by  the  subscribers,  within  the  meaning  of  the  subscrip- 
tion, he  does  not,  as  such,  represent  the  plaintiif,  and  has  not,  in 
any  manner,  transferred  the  contract  to  the  plaintiff.  In  tiie  case 
of  The  Reformed,  etc.,  Church  v.  Brown  (24  How.,  76),  decided  by 
the  Commission  of  Appeals,  stress  was  placed  on  the  provisions  of 
the  statute  by  which  a  church  corporation,  when  incorporated,  is 
authorized  to  take  possession  of  all  the  temporalities  belonging  to 
the  church,  whether  given,  granted  or  devised  directly  to  the 
church,  or  to  any  other  person  for  its  use,  and  to  take  and  recover 
all  the  debts,  etc.,  belonging  thereto,  '  as  fully  and  amply  as  if  the 
right  or  title  thereto  had  originally  been  vested  in  said  trustees,' 
and  in  the  opinion  of  the  court  it  is  said  :  '  The  facts  above  stated 
do  not  show,  nor  is  it  expressly  found  by  the  referee,  to  or  with 
whom  the  promise  or  agreement  was  made,  but  it  does  appear  that 
it  was  made  at  the  time  of  the  formation  of  the  society  and  that  it 
was  made  by  the  subscribers.  It  will,  therefore,  in  the  absence  of 
an  express  statement  or  finding,  be  presumed  that  it  was  a  legal 
subscription,  in  and  by  which  he,  in  some  way,  legally  obligated 
himself  to  pay  the  sums  subscribed  for  the  use  and  benefit  of  the 
society.  In  all  the  other  cases  cited  it  appears  that  the  subscrip- 
tion was  made  for  the  use  and  benefit  of  a  particular  society  or  cor- 
poration. In  the  present  case,  no  such  thing  appears,  or  can  ho 
epelled  out  from  the  subscription  paper,  nor  can  it  be  inferred  from 


HINMAN  v.  PEOPLE.  647 

FOURTH  DEPARTMENT,  OCTOBER  TERM,  1876. 

any  evidence  in  the  case ;  we  are,  therefore,  of  the  opinion  that  the 
plaintiff  has  no  title  to  the  subscription,  conceding  that  in  other 
respects  it  was  valid  and  enforceable  as  a  binding  contract  to  pay 
the  sums  subscribed.  (See  Van  Rensselaer  v.  Aikin,  44  N. 
Y.,  126.) 

The  order  dismissing  the  complaint  and  the  order  denying  a 
new  trial  are  affirmed." 

John  H.  Knox,  for  the  appellant.     W.  H.  Bright,  for  the 
respondent. 

Opinion  by  TALCOTT,  J. 

Present  —  MULLIN,  P.  J.,  SMITH  and  TALOOTT,  JJ. 

Order    dismissing    complaint    and    order    denying  new  trial 
affirmed. 


EDWIN   HINMAN,   PLAINTIFF  IN  ERROR,  v.  THE   PEOPLE 
OF  THE  STATE  OF  NEW  YORK,  DEFENDANT  IN  ERROR. 

Writ  of  error  —  to  Court  of  General  Session* —  tested  and  signed  by  County  Judge — 

a  nullity. 

WRIT  of  error  to  the  Court  of  General  Sessions  of  Livingston 
county,  to  review  the  conviction  of  the  plaintiff  in  error  of  the 
crime  of  burglary  with  intent  to  commit  rape. 

The  court  at  General  Term  say :  "  This  case  is  not  properly 
before  us.  It  comes  before  us  upon  a  writ  of  error  to  the  Court  of 
Sessions  of  the  county  of  Livingston. 

The  writ  of  error  appears  to  have  been  issued  by  the  County 
Court  of  Genesee  county.  It  is  tested  in  the  name  of  the  county 
judge  of  that  county  and  signed  by  the  said  county  judge.  It  doe§ 
not  appear  to  have  been  signed  or  sealed  by  any  clerk  of  this  court. 
It  is  upon  its  face  a  nullity. 

It  does  not  bring  before  this  court  the  proceedings  of  the  Court 
of  Sessions,  and  confers  upon  us  no  authority  to  review  such 
proceedings. 

Said  writ  must  be  dismissed." 

Writ  of  error  dismissed. 


648  HINMAN  v.  PEOPLE. 

FOOKTH  DEPAKTMKNT,  OCTOBER  TERM,  1876. 

F.  C.  Pecky  for  the  plaintiff  in  error.     O.  Olney,  for  the  defend* 
ant  in  error. 

Opinion  by  SMITH,  J. 

Present  —  MULLIN,  P.  J.,  SMITH  and  TALOOTI,  JJ. 

Writ  of  error  dismissed. 


INDEX 


FAM. 

ACCEPTANCE  —  What  sufficient  to  vest  title — Goods  manufactured  to  order  — 
payment  of  price  after  seeing  them,  and  direction  to  ship —  transfers  title. 

See  HUBBABD  v.  O'BRIEN 344 

ACCORD  AND  SATISFACTION  —  What  constitutes.]  Plaintiff  being  the 
owner  of  two  promissory  notes  for  $2,000,  made  by  the  defendant,  com- 
menced an  action  thereon,  and  also  commenced  an  action  against  the  wife 
of  the  defendant.  Subsequently  the  plaintiff  received  from  the  defendant 
$1,500  on  the  notes  and  twenty-five  dollars  for  costs  and  gave  to  defendant 
and  wife  a  receipt  ' '  in  full  of  notes,  agreements  or  claims  of  all  kinds 
against  these  parties,"  it  being  understood  that  "  this  transaction  finishes  all 
suits  or  litigation  against  said  parties  and  all  suits  are  hereby  discontinued," 
defendant  agreeing  to  make  no  claim  for  certain  machinery,  then  held  by  the 
plaintiff  as  collateral  to  an  indebtedness  from  one  Weed.  Held,  that  this  was 
an  accord  and  satisfaction,  and  that  the  plaintiff  could  not  maintain  an  action 
to  recover  the  balance  due  upon  the  notes.  PARDEE  v.  WOOD 584 

ACCOUNT  —  Residuary  legatee —  action  for,  as  to  items  of  personal  property 
received  by  life  beneficiary,  no  inventory  having  been  made  —  maintainable. 

See  WILLIAMS  v.  PEABODY 271 

ACTION  —  Cause  of.]  Where  a  complaint  alleged  that  defendants  received 
from  the  plaintiff  his  promissory  note  for  $534,  indorsed  by  one  Sanborn, 
upon  the  agreement  that  they  would  return  the  same  before  maturity;  the 
maturity  of  the  note;  a  failure  to  return  the  same  and  a  sale  thereof  by 
defendants  before  maturity,  held,  that  it  stated  facts  sufficient  to  constitute  a 
cause  of  action.  LOOMIS  v.  MOWRY 311 

Bight  of  party  to  a  separate  action  for  a  demand  —  although  at  the  time 

an  action  is  pending  against  him  by  the  same  parly,  wherein  he  could  have  set  up 
tuch  demand  as  a  counter-claim. 

See  INSLEE  v.  HAMPTON 280 

Right  of,  acquired  by  mortgagee  by  reason  of  assumption  of  mortgage  by 

grantee  —  may  be  released  by  grantor. 

See  STEPHENS  v.  CASBACKER 118 

To  recover  town  moneys,  must  be  brought  by  supervisor  —  1  R.  8.,  866,  §  1  — 

2  R  8.,  473,  §§  92,  93  —  Code,  113. 

See  TOWN  OF  CHAUTAUQUA  v.  GIPFORD 152 

Where  a  nolle  prosequi  is  entered  with  defendant's  assent,  it  is  a  sufficient 

end  of  the  prosecution  to  support  an  action  for  malicious  prosecution. 

See  MOULTON  v.  BEECHER lOt 

To  establish  and  restore  portions  of  a  destroyed  wul  —  Supreme  Court  hat 

jurisdiction  of —  Surrogate's  Court  hat  not. 

See  HOOK  v.  PRATT 102 

Joinder  of  administrator  and  hefr  —  in  an  action  for  an  accounting  eon- 

eeming  the  affairs  of  a  partnership — is  proper  although  the  interest*  of  the 
teveral  defendants  did  not  accrue  in  the  same  right. 

Bee  SKIDMORB  «.  COLLIER SO 

— —  Assumption  of  mortgage  by  grantee. 

See  VROOMAN  v.  TURNER 78 

By  mortgagee  —  on  covenant  between  grantor  and  grant*  assuming  pay- 

of  tJie  mortgage  —  maintainable. 

See  CAMPBELL  v.  SMITH • 


650  INDEX. 

ACTION  —  Continued. 

When  maintainable  by  stockholder,  against  trustees  and  company. 

See  YOUNG  e.  DRAKE 61 

To  set  aside  assessment  as  illegal  —  not  maintainable,  unless  defects  in  assess- 
ment be  sucJi  as  would  not  appear  in  proceedings  to  enforce  the  lien  of  the  assess- 
*nent. 

See  BOYLE  v.  CITY  OF  BROOKLYN 82 

By  one  partner  against  another  —  but  not  against  all — when  maintainable 

See  WILLS  v.  SIMMONDS 189 

Urtder  t?w  Code  —  §  144,  sub.  6,  means  "  any''  cause  of  action. 

See  MACKEY  t>.  AUER 180 

For  assault  and  battery  —  Costs  —  Code,  %  304  —  when  title  to  real  prop- 
erty involved. 

See  LILLIS  v.  O'CONNOR 280 

To  restrain  waste,  by  vested  remainderman. 

See  WILLIAMS  v.  PEABODY 271 

Certificate  —  when  made  prerequisite  of  payment —  unreasonable  refusal 

to  give  —  effect  of. 

See  BANCKER  v.  MAYOR 409 

For  account  —  by  residuary  legatee  —  to  compel  discovery  of  items  of  per- 
sonal property  in  hands  of  life  beneficiary. 

See  WILLIAMS  v.  PEABODY 271 

Excise  law — prosecution  by  third  person  for  violation  of — discontinuance 

of,  by  overseer  of  the  poor  —  not  allowed. 

See  RECORD  v.  MESSENGER 283 

Revival  of— joint  debtors  —  death  of  one  during  pendency  of  action — revival 

of  against  her  representatives. 

See  MASTEN  v.  BLACKWELL 313 

Against  judge  for  unlawful  imprisonment  —  when  not  maintainable 

although  sentence  is  unauthorized. 

See  LANGE  v.  BENEDICT 862 

For  salary  —  by  one  unlawfully  kept  out  of  office  —  liability  of  city  fa 

payment. 

See  DOLAN  v.  MAYOR 440 

To  recover  damages  against  a  fraudulent  purchaser  on  a  foreclosurt 

sale  —  a  release  by  plaintiff  of  all  interest  in  the  property  to  a  person  acquiring 
title  from  such  purchaser,  when,  no  defensf  to  the  action. 

See  DUSENBURY  v.  CALLAGHAN     .  641 

No  cause  of  exists  —  after  surrender  and  cancellation  of  promissory  note    • 

though  it  is  only  paid  in  part. 

See  KENT  v.  REYNOLDS 559 

Upon  sheriff's  bond  —  when  permitted  —  statute  —  mandatory  —  'per- 
missive. 

See  PEOPLE  v.  CONNER 538 

ADJOURNMENT  —  Of  sale  in  foreclosure  —  after  stay  of  proceedings  upon 
appeal  under  section  341  of  the  Code  and  before  justification  of  sureties  on  under- 
taking. 

&fc  WARD*.  JAMES 526 

ADMINISTRATRIX  —  Negligence  of,  in  keeping  money  of  the  estate  in 
house,  instead  of  in  bank. 

See  CORNWELL  T.  DECK 122 

ADMIRALTY  COURTS  —  Have  not  exercised  jurisdiction  to  order  sale  of 
vessel  owned  by  tenants  in  common,  except  in  those  cases  in  which  the  opposing 
interests  are  equal. 

See  ANDREWS  v.  BETTS 82S 

ADULTERY —  Condonation  of-~by  contract  between  husband  and  wife. 

See  VAN  ORDER  v.  VAN  ORDER 818 


INDEX  651 


ADVERSE  POSSESSION—  Substantial  inclosure.]  1.  In  an  action  brought 
to  recover  damages  for  a  trespass  committed  upon  the  land  of  the  plaintiff, 
the  defendant  claimed  to  hold  the  lot  by  adverse  possession.  It  appeared 
up  >n  the  trial  that  the  lot  was  inclosed  on  one  side  by  a  highway,  on  two 
Rides  by  fences  and  on  the  remaining  side  by  a  distinct  Hue  of  marked  trees 
from  corner  stake  to  corner  stake.  Held,  that  the  lot  was  not  protected  by 
a  substantial  inclosure  within  the  meaning  of  subdivision  1  of  section  85 
of  the  Code.  POPE  v.  HANMER 266 

2.  Cultivation  and  improvement  —  Code,  %  85.  ]     It  further  appeared  upon 

the  trial,  that  the  defendant  had  occasionally  used  the  lot,  (a  wood-lot)  as  a 
pasture,  and  that  he  had,  now  and  then,  taken  wood  and  timber  from  it  for 
shingles  and  staves.  Held,  -that  this  did  not  show  it  to  have  been  usually 
cultivated  or  improved,  within  the  meaning  of  subdivision  2  of  section  85  of 
the  Code.  Id. 

AGENCY  —  Revoked  by  death — Obligation  created  after  death  of  principal  —  not 
enforceable  against  his  representatives.]  An  agreement,  was  executed  by  cer- 
tain shareholders  of  a  manufacturing  company,  reciting,  in  substance,  that 
in  order  to  raise  money  to  carry  on  its  business,  notes  should  be  made 
from  time  to  time,  and  indorsed  by  one  or  more  of  them,  and  that  in 
case  any  of  the  indorsers  of  such  paper  should  incur  any  loss  by  reason 
thereof,  each  should  pay  his  equal  proportion  thereof.  In  an  action  by 
one  of  them,  who  had  indorsed  and  paid  such  paper,  to  recover  from 
the  executors  of  H.,  another  signer  of  said  agreement,  his  proportion  thereof, 
the  complaint  not  alleging  that  saitl  note  was  indorsed  in  the  lifetime  of  H. : 

ffeld,  on  demurrer  thereto  that  it  did  not  state  facts  sufficient  to  consti- 
tute a  cause  of  action,  that  the  agreement,  in  substance,  created  an  agency 
by  which  any  shareholder  could  bind  another,  if  not  to  the  holder  of  the 
paper,  at  least  tu  the  other  joint  signers  of  the  agreement,  as  a  surety  for  the 
corporation ;  that  as  an  agency  is  revoked  by  the  death  of  the  principal,  the 
power  to  bind  H.  ceased  at  his  death,  and  as  no  obligation  by  indorsement 
was  alleged  to  have  been  incurred  by  the  plaintiff  during  the  lifetime  of  H., 
and  on  his  death  any  authority  to  bind  him  or  his  estate  ceased,  no  cause  of 
action  was  stated. 

Held,  further,  that  the  contract  imposed  a  joint,  and  not  a  several  or  joint 
and  several  liability,  upon  the  signers  of  it;  that  there  was  no  considera- 
tion for  the  agreement  except  the  suretyship;  that  formerly  the  liability  of 
any  one  of  the  joint  contractors  was  discharged  at  law  by  death,  and  no 
action  could  be  maintained  against  his  personal  representatives  in  equity 
where  the  joint  obligation  was  founded  solely  upon  the  consideration  of 
suretyship,  but  under  the  modern  doctrine,  the  representatives  of  H.  would 
probably  have  been  liable  to  contribute  for  any  liability  incurred  by  the 
plaintiff,  for  an  indorwpment  made  during  the  lifetime  of  H. 

HELMER  v.  ST.  JOHN 168 

AGENT — Of  insurance  company  —  powers  of — ratification  of  acts  by  com- 
pany. 

See  SHAFT  v.  PH<ENIX  MUT.  LIFE  INS.  Co 683 

AGREEMENT  —  Of  judgment  creditor,  a»  to  judgment,  if  undisclosed,  it  void  a» 
against  shenf'*  certificate  of  sale  on  the  judgment. 

See  FROST  0.  YONKERS  SAVINGS  BANK 38 

See  CONTRACT. 

AGGRIEVED  PARTY—  W/u>  is,  under  chap.  838,  of  1858  —  Assessment  — 
Nmo  York  city. 

See  MATTER  OF  MOORE 518 

ALIENS  —  Itetident,  not  required  to  give  security  for  costs,  union  residence  i» 
ihown  to  be  inerely  temporary. 

See  NORTON  v.  MACKra 590 

ANOTHER  STATE —  Laios  of —  knowledge  of  existence  of — question  of  foot, 
not  ofla/U). 

See  PALMER  v.  MINAR 84S 


652  INDEX. 


APPEAL  —  To  County  Oourt  —  when  security  on,  jurisdictwnal  —  Code,  §§ 
352-355  —  cAop.  392  of  1863.]  1.  On  appeal  froin  a  Justice's  Court,  before 
the  act  of  1863  (chap.  392),  security  was  only  required  when  a  stay  of  execu- 
tion was  desired;  since  that  act,  where,  by  the  terms  of  section  352,  the 
appellant  is  entitled  to  a  new  trial,  security  is  required  to  perfect  such 
appeal,  and  give  jurisdiction  thereon  to  the  County  Court.  KONTZ  v.  LIGHT,  14 

2.  ——  Appealable  order.]  A  refusal  to  dismiss  such  appeal  when  security 
has  not  boen  filed  affects  a  substantial  right,  and  thu  order  refusing  it  is 
ftppealable.  Id. 

ARREST  —  Pending  suit  —  undertaking  —  liability  of  sureties  on,  where  one 
only  of  two  defendants  can  be  arrested  on  execution.  ]  1.  Two  defendants  having 
been  arrested,  in  an  action  brought  against  them  by  the  plaintiff,  the  defend- 
ants in  this  action  executed  an  undertaking  to  procure  their  discharge.  Sub- 
sequently, upon  an  execution  issued  against  their  persons  upon  a  judgment 
recovered  in  the  first  action,  the  sheriff  arrested  one  and  returned  as  to  the 
other  non  est  inventus.  In  an  action  upon  the  undertaking,  held,  that  the 
arrest  and  imprisonment  of  one  defendant  did  not  relieve  the  sureties  to  the 
undertaking  from  their  liability  for  the  escape  of  the  other. 

GROUSE  v.  PADDOCK 630 

2.  Evidence  of  prior  arrests — not  proper  to  impeach  character.]     Upon 

an  indictment  for  forgery  the  prisoner,  on  his  examination  in  his  own  behalf, 
was  asked,  with  a  view  of  impeaching  his  character,  "How  many  times 
have  you  been  arrested  ?  "  Held,  that  the  question  was  improper,  as  the  mere 
fact  of  his  arrest  had  no  tendency  to  impeach  his  character  in  any  particular. 
BROWN  v.  PEOPLE 563 

ASSAULT  AND  BATTERY  —  Action  for  —  Code,  §  304  —  costs  —  when 
title  to  real  property  involved.]  1.  In  an  action  for  an  assault  and  battery,  the 
defense  was :  (1)  general  denial,  (2)  non  nssault  demesne,  (3)  justification  in 
defense  of  defendant's  real  property.  The  plaintiff  recovered  a  verdict  of 
six  cents,  and  having  obtained  a  certificate  from  the  county  judge  that  the 
title  to  real  property  was  put  in  issue  by  the  pleadings  and  came  in  ques- 
tion upon  the  trial,  he  taxed  full  c-osts.  Held,  that  this  was  proper,  and  that 
a  motion  to  strike  from  the  judgment  all  costs  in  excess  of  six  cents  waa 
properly  denied.  LILLIS  o.  O'CoNNER 280 

2.  County  judge's  certificate,  conclusive.'}     Such  certificate  is  conclusive 

upon  the  taxing  officer,  to  show  that  the  title  to  land  came  in  question  upon 
the  trial.  Id. 

ASSESSMENT—  One  resolution  providing  for  two  —  chapter  818  of  1868  — 
chapter  245  of  1875  — regularity  of  proceedings  under.]  1.  The  board  of  trustees 
of  the  village  of  Portchester  acted  upon  two  petitions,  one  for  grading  Han- 
seco  and  the  other  for  grading  Irving  avenue.  There  was  but  one  resolution 
which,  though  it  embraced  both  streets,  yet,  in  legal  effect,  established  sepa- 
rate assessment  districts  for  each,  and  the  subsequent  proceedings  were  con- 
ducted thereunder.  Held,  that  the  proceedings  were  not  open  to  the  objec- 
tion that  there  was  only  one  proceeding  for  the  grading  of  both  streets. 

MERRITT  «.  VILLAGE  OF  POUTCHKSTER 40 

2. Bids — time  of  opening.]     A.  requirement  in  a  charter  that  bids  shall 

be  opened  on  the  day  mentioned  in  the  notice  or  on  the  adjourned  day,  and 
that  the  trustees  shall  "then"  determine  whose  is  the  most  favorable,  does 
not  restrict  them  to  an  instant  determination;  they  have  all  the  time  requi- 
site for  a  correct  conclusion,  the  word  "  then  "  being  used  in  the  sense  of 
"  wm  afterward"  or  "immediately."  Id. 

3. Report  containing  charges  —  effect  of  its  confirmation.]     Where   a 

charter  requires  the  trustees  to  determine  upon  and  fix,  but  specifies  no  form 
in  which  the  trustees  are  to  express  their  decision  as  to  the  proper  compen- 
sation for  work  done,  a  confirmation  of  the  report  containing  the  charges 
for  expenses,  counsel  fees,  etc.,  is  a  sufficient  compliance  with  the  provisions 
of  the  charter.  Id. 

4. Notice — publication  of —  objections.  J    A  statute  providing  that  before 

completing  and  signing  the  report,  the  commissioners  must  publish,  once 
in  each  week  for  two  weeks  successively,  a  notice  of  a  time  and  place, 


INDJtX.  653 

ASSESSMENT  —  Continued.  PABB 

when  and  where  the  parties  interested  can  be  heard,  held,  to  mean  that  there 
shall  be  two  publications,  one  in  one  week,  and  the  other  in  the  next  week, 
and  not  that  two  weeks  must  elapse  between  the  first  publication  and  the 
d  ty  designated  for  the  hearing. 

Held,  further,  that  a  notice  requiring  the  objections  to  be  in  writing  was 
invalid,  the  statute  conferring  no  authority  that  such  hearing  shall  be  re- 
stricted to.written  objections,  and  that  this  "objection  by  the  plaintiffs  would 
have  been  fatal  to  the  proceedings  had  they  disregarded  the  notice.  But 
having  appeared  before  the  commissioners  pursuant  thereto  and  had  the 
benefit  of  a  hearing,  they  thereby  waived  all  defects  therein.  Id. 

•*/. Action  to  set  aside  as  illegal  —  defects  in  —  must  not  be  such  as  would 

appear  in,  proceedings  to  enforce.}  In  an  action  to  vacate  and  set  aside  an 
assessment  as  illegal,  it  is  not  enough  to  allege  that  the  proceedings,  although 
in  fact  invalid,  appear  on  their  face  to  be  regular,  but  to  sustain  the  action  it 
must  appear  that  the  defects  alleged  are  such  as  would  not  necessarily 
appear  in  proceedings  to  enforce  the  lien  of  the  assessment. 

BOYLE  v.  CITY  OF  BROOKLYN • 83 

6. Wften  vacated  under  chapter  580  of  1872.]     Under  the  provisions 

of  chapter  580  of  1872,  providing  that  no  assessment  shall  be  set  aside 
except  in  cases  in  which  fraud  is  shown,  a  mere  defect  of  authority  in  the 
officer  contracting  for  the  work  is  not  sufficient  to  authorize  the  court  to 
vacate  the  assessment.     Accordingly,  upon  an  application  to  vacate  au  assess- 
ment on  the  ground  that  the  commissioner  of  public  works  had  no  authority 
t<>  make  the  contract  for  the  work,  without  a  previous  resolution  of  the  com- 
mon council,  held,  that  whether  or  not  he  had  authority  so  to  do  was  imma- 
terial, as  a  mere  defect  therein  would  not  authorize  the  court  to  vacate  the 
assessment.     MATTER  OF  N.  Y.  PROT.  Ens.  PUBLIC  SCHOOL 457 

7.  Payment  of,  under  protest  —  Voluntary  payment  —  right  to  recover 

amount  paid.}    The  plaintiff  received  a  notice  from  the  collector  of  the  city 
of  New  York,  stating  that  an  assessment  had  been  made  on  a  lot  owned  by 
him,  payment  of  which  was  expected  to  be  made  on  or  before  July  twenty- 
seventh,  and  that  unless  paid  before  that  day  interest  would  be  charged  at  the 
rate  of  seven  per  cent  from  the  date  of  confirmation.     Plaintiff  saw  the  col- 
lector, told  him  the  matter  was  in  litigation  and  that  if  he  paid,  it  would  be 
under  protest;  the  collector  said,  "you can  do  as  you  like,"  whereupon  plain- 
tiff paid  the  amount.     Subsequently,  upon  a  petition  filed  by  the  plaintiff  and 
others,  the  assessment  was  vacated.     In  an  action  brought  by  him  to  recover 
back  the  amount  so  paid,  held,  that  as  the  payment  was  made  voluntarily 
and  with  full  knowledge  of  all  the  facts,  the  action  could  not  be  maintained. 

PEYSER  v.  MAYOR 418 

8.  Purchase  of  property  subsequent  to  confirmation — presumed  to  have 

been  made  subject  to  —  Party  aggrieved  —  wlw  is,  under  chap.  338  of  1858.] 
Where  a  person  moves,  under  chapter  338  of  1858,  to  vacate  an  assessment 
upon  property  purchased  by  him  subsequent  to  the  confirmation  of  the  assess- 
ment, it  rests  upon  him  to  show  that  he  is  aggrieved  thereby.     In  the  absence 
of  any  evidence  on  this  point,  it  will  be  presumed  that  he  purchased  sub- 
ject to  the  assessment,  and  that  the  same  formed  part  of  the  consideration 
given  by  him  for  the  property.     MATTER  OF  MOORE 518 

Irregularity  in,  cured  by  legislative  act  —  Law  directing  that  property 

defectively  assessed  for  local  improvement  be  taxed  to  the  amount  of  the  assess- 
ment— validity  of —  Constitution,  art.  7,  §  13  —  requiring  tax  and  object  to  be 
stated  —  relates  solely  to  State  finances,  and  does  not  govern  assessments  for  local 
improvements—  chap.  297  of  1861  —  chap.  883  of  1869  — construction  of. 

See  GUEST  v.  CITY  OF  BROOKLYN 97 

Gertiorari  to  review  —  where  property  is  generally  assessed  at  one-third 

its  value,  in  violation  of  the  assessors1  duty  —  court  vri'l  not  reduce  assessment  of 
property  assessed  at  a  greater  rate,  to  same  proportion. 

See  PEOPLE  EX  REL.  R,  W.  AND  O.  R.  R.  Co.  v.  DIXON 178 

Injunction  —  restraining  city  from  confirming —  no  defense  against  eon- 
tractor  entitled  to  his  pay  on  the  confirmation,  unless  diligence  it  shown  to  re- 
move it. 

Set  BOWERY  NAT.  BAKE  c.  MAYOR 224 


654  INDEX. 


ASSESSORS  —  Acts  of,  retiewable  by  County  Court, 

Set  MATTER  OF  N.  Y.  CATHOLIC  PBOTECTOBY 91 

ASSETS  —  Of  corporation  on  dissolution,  because  of  disagreement  t/f  trustees — 
chapter  442  of  1876  —  rule  of. 

See  MATTER  OF  WOVEN  TAPB  SKIBT  Co 508 


ASSIGNMENT—  WiOtout  preference— failure  to  jtte  bond  required  by  §  8, 
chapter  348  of  1860  —  effect  of — bankruptcy  act. 

See  VON  HEIN  «.  ELKUS 518 

ASSUMPTION  —  Of  mortgage  by  grantee — right  of  grantor  —  Judgment  roll 
in  foreclosure  against  grantor  — evidence  against  grantee,  although  not  notified  of 
action. 

See  COMSTOCK  e.  DROHAN 878 

ATTACHMENT  —  Seizure  —  what  acts  of  plaintiff  a  ratification  of. 

See  HERRMAN  v.  GILBERT 258 

ATTORNEY  —  Entitled  to  notice  of  examination  of  party  before  trial,  when  he 
has  appeared  for  the  party  in  the  action. 

See  PLUMMKK  v.  BELDEN 455 

Responsible  for  the  insertion  of  irrelevant  and  scandalous  matter  in  plead- 
ing —  costs  imposed  on  him  therefor. 

See  McVEY  «.  CANTRELL  and  TADDIKEN  v.  CANTRELL 522 

ATTORNEY  AND  CLIENT  —  Agreement  to  prosecute  action  fcr  one-half 
the  damages  —  fraudulent  settlement  by  client  —  Relief  of  attorney.}  1.  Attor- 
neys agreed  with  a  party  who  had  been  injured  by  a  collision  on  a  railroad,  to 
prosecute  an  action  for  him,  without  expense  to  him,  against  the  company 
for  the  damages  sustained,  in  consideration  of  one-half  of  the  damages  to  be 
recovered.  On  the  service  of  the  summons  in  the  action  on  a  director  of 
the  company,  he  was  informed  that  the  attorneys  had  an  interest  in  the 
suit  for  then*  services,  and  the  company  must  not  settle  without  their  con- 
sent. Afterward  the  company  obtained,  in  consideration  of  $1,000,  a 
release  from  the  plaintiff  (without  the  knowledge  or  consent  of  his  attor- 
neys) from  all  claim  for  damages. 

Held,  that  it  would  be  unnecessary  and  unjust  to  set  aside  the  release,  as 
that  would  take  from  the  defendant  the  protection  which  it  afforded  it 
against  the  plaintiff;  but  it  was  the  duty  of  the  referee  before  whom  the 
cause  was  tried,  having  found  the  release  to  be  fraudulent,  to  have  held 
it  void  as  against  the  attorneys,  and  complied  with  their  request  and  ascer- 
tained the  damages  sustained  by  the  plaintiff,  and  given  judgment  against 
the  defendant  for  one-half  the  amount  thereof. 

COUGHLIN  v.  N.  Y.  CEN.  AND  HUD.  It.  R.  R  Co 136 

2.  Evidence — defense  not  pleaded  —  to  controvert  matter  set  up  in  answer  — 

admissible.]  The  defendant  having  insisted  that  the  referee  could  not  try  the 
question  whether  the  release  was  obtained  fraudulently,  as  that  was  not 
one  of  the  issues  referred  to  him  : 

Held,  that  as  the  release  was  set  up  as  a  defense  in  the  answer,  and  by 
the  Code  all  allegations  in  the  answer  are  to  be  deemed  denied,  unless  they 
constitute  a  counter-claim,  in  which  case  a  reply  must  be  put  in,  the  plain- 
tiff had  a  right  to  prove  on  the  trial  any  matter  that  constituted  an  answer 
to  the  matter  set  up  by  the  defendant  as  a  defense,  and  the  evidence  that 
the  release  was  obtained  by  fraud  was  a  perfect  answer  to  that  instrument 
as  a  defense,  if  it  was  established  by  the  evidence.  Id. 

ATTORNEY-GENERAL —  Cannot  be  compelled  to  bring  action  of  quo  war- 
ranto. 

See  PEOPLE  EX  BEL.  DEMAHEST  v.  FAIRCHILD 884 

AUCTIONEER'S  FEES  —  Foreclosure  sale.]  No  fees  can  be  allowed  to 
an  auctioneer  for  services  rendered  upon  the  adjournment  of  a  sale  by  a 
referee  in  foreclosure 

See  WARD  v.  JAMES KM 


INDEX.  655 


BAILEE  —  Lien  of — not  lost,  because  of  not  being  expressed  in  receipt.]  One 
B;  iggs,  the  owner  of  certain  barley,  which  he  had  transferred  to  the  plain- 
tiff as  collateral  to  a  loan,  being  desirous  of  having  the  same  malted,  an  agree- 
ment was  entered  into  between  Briggs,  the  president  of  the  plaintiff,  and 
the  defendant,  by  which  the  latter  agreed  to  malt  the  barley  and  receive 
twenty  cents  per  bushel  for  so  doing.  At  that  time  he  delivered  to  the  plain- 
tiff a  paper,  by  which  he  agreed  to  hold  the  malt  subject  to  the  written  order 
of  the  plaintiff,  nothing  being  stated  therein  as  to  the  charges  for  malting  or 
any  lien  therefor.  The  defendant  having  received  and  malted  the  barley, 
refused  to  deliver  the  same  until  his  charges  for  so  doing  were  paid.  Held, 
that  the  law  gave  him  a  lien  upon  the  malt  for  the  amount  agreed  to  be  paid, 
and  that  the  mere  absence  of  a  reservation  of  such  lien  in  the  receipt,  by 
which  he  agreed  to  hold  it  subject  to  plaintiff's  order,  did  not  deprive  him 
thereof.  HAZARD  v.  MANNING 613 

BANKRUPTCY  ACT  —  Gen&ral  assignment  without  preference.  ]  The  right 
to  make  a  general  assignment  for  the  benefit  of  creditors  is  not  suspended 
by  the  provisions  of  the  bankrupt  act,  provided  such  assignment  contains 
no  preferences  and  is  not  made  with  intent  to  defraud  the  creditors  of  the 
assignor.  VON  HBIN  v.  ELKUS 515 

BANKRUPTCY  —  Injunction — sheriff  Uablefor  release  of  levy  on  the  prop- 
erty of  a  judgment  debtor  on  his  being  adjudged  a  bankrupt. 

See  ANSONIA  BRASS  AND  COPPER  Co.  v.  BABBITT 157 

Fraudulent  concealment  of —  what  is. 

See  ROBBLINQ  v.  DUNCAN 503 

BILL  OF  EXCEPTIONS  —  Settlement  of  ease  presenting  only  questions  of 
law  —  insertion  of  all  the  evidence  in,  not  proper — Statement  of  facts  established 
by  the  evidence  —  substituted  for  tJie  evidence,  when. 

See  MAKCKWALD  v.  OCEANIC  STEAM;  NAV.  Co 547 

BILL  OF  LADING  —  Parol  contract  —  when  not  merged  in  subsequent  writ- 
ten contract. 

See  HILL  v.  SYRACUSE,  B.  AND  N.  Y.  R.  R.  Co 296 

Delivery  of  goods  —  Several  bills  of  lading — the  holder  of  which  bill  enti- 
tled to. 

See  MERCHANTS'  BANK  v.  UNION  R.  R.  AND  TRANS.  Co 249 

BILL  OF  PARTICULARS  —  Effect  of  failure  to  serve,  with  the  notice  in  an 
action,  to  foreclose  a  mechanic's  lien. 

See  NORCOTT  v.  FIRST  BAPTIST  CHURCH  OP  ROMS 639 

Verification  of —  in  action  to  foreclose  mechanic's  lien. 

See  GREY  v.  VORHIS 812 

BINGHAMTON  —  Bridge  company  —  decision  of  "highest  tribunal"  —  Acts 
done  under — Protection  against  penalty  or  forfeiture  tJterefor. 

See  CHENANGO  BRIDGE  Co.  v.  PAIGE 292 

BON  A  FIDE  PURCHASER  —  Of  promissory  note  —  effect  of  garnishment 
process  on. 

See  SIMON  v.  HUOT 878 

Of  promissory  note  —  notice,  sufficient  to  require  inquiry. 

See  MABIE  v.  JOHNSON 800 

Of  negotiable  paper,  invalid  in  hands  of  payee  —  recovery  by,  restricted 

to  amount  paid. 

See  TODD  v.  SIFELBOURNE 510 

BRAKEMAN  —  Employment  of—  scope  of.]  A  brakeman,  put  in  charge 
of  railway  cars  with  a  view  to  securing  the  proper  and  orderly  seating  of 
passengers,  forcibly  ejected  the  plaintiff,  who  c'isobeyed  his  direction.  Held, 
that  in  so  doing  the  brakeman  must  be  deemed  to  have  acted  within  the 
scope  of  his  employment,  and  that  the  company  was  liable  in  case  he  used 
excessive  and  unnecesssary  force. 

PECK  t».  N.  Y.  CBN.  AND  HUD.  R.  R.  R.  Co «W 


556  INDEX. 


BROOKLYN  —  Justice's  Court  in  —  construction  of  section  16,  chapter  102, 
Law*  of  1850  —  in  reference  thereto. 

See  DoTJoiAss  v.  REILLY 86 

BOUNDARIES  —  Known  and  fixed  boundaries  control  courses  and  distances. 

See  Runs  v.  LAW 1 251 

BUILDING  —  linpropei  construction  of  building,  causing  snow  to  fall  from 
roof.}  Where  the  roof  of  a  building,  in  a  large  city,  is  so  constructed  as  to 
render  the  snow  falling  upon  it  liable  to  be  precipitated  upon  the  sidewalk, 
and  there  is  uo  adequate  guard  at  the  edge  to  retain  it,  it  is,  in  judgment  of 
law,  a  nuisance.  WALSH  v.  MEAD 387 

BURDEN  OF  PROOF  —  In  action  on  a  note  made  by  a  lunatic  —  upon 
whom. 

See  HICKS  v.  MARSHALL 327 

fire  occasioned  by  sparks  from  a  locomotive  —  on  whom  it  lies  to  show  due 

caution  was  or  was  not  exercised  by  the  railroad  company. 

See  McCAie  e.  ERIE  RAILWAY  Co 599 

CANCELLATION  —  And  surrender  of  note,  not  paid  in  fuU  —  no  right  of 
action  exists  thereafter  for  amount  unpaid. 

See  KENT  T.  REYNOLDS 559 

CASE  —  Settlement  of,  presenting  only  questions  of  law  —  insertion  of  all  the  evi- 
dence in,  not  proper  statement  of  facts  established  by  the  evidence  —  substituted 
for  Hue,  evidence,  when. 

See  MARCKWALD  v.  OCEANIC  STEAM  NAV.  Co 547 

CAUSE  OF  ACTION —  Complaint  —  when  sufficient  —  Promissory  note  signed 
"J".  &  McOlure,  agent"  — liability  of  principal  upon.}  The  complaint  alleged 
that  the  defendant,  by  J.  S.  McClure,  her  agent,  made  and  delivered  her  pro- 
missory note,  in  writing,  setting  forth  a  copy  of  the  note,  signed  J.  8.  McClure, 
ageut,  and  alleging  that  the  consideration  of  the  note  was  goods  sold  to  the 
defendant.  The  defendant  demurred.  The  demurrer  was  sustained  at 
Special  Term  on  the  grounds  that  the  note  did  not  refer  to  the  defendant  by 
name,  and  did  not  show  that  McClure  had  authority  to  sign  as  her  ageut. 
Held,  that  the  complaint  stated  facts  sufficient  to  constitute  a  cause  of  action. 

That,  under  the  allegation  that  the  defendant  made  and  delivered  her 
promissory  note,  it  would  be  competent  to  show  that  the  person  signing  the 
note  was  duly  authorized  by  her  so  to  do. 

The  fact  that  the  name  of  the  defendant  did  not  appear  upon  the  face  of 
the  note,  would  not  prevent  the  plaintiff  from  introducing  evidence  to  show 
that  she  was  bound  thereby.  MOORE  v.  McCLURE 557 

Under  the  Code — §  144,  sub..  6,  means  "any"  cause  of  action. 

See  MACKEY  v.  AUER 180 

CERTIFICATE  —  When  made  prerequisite  of  payment  —  unreasonable  refusal 
to  give  —  effect  of.]  Where  an  act  authorizing  the  construction  of  a  court- 
house in  the  city  of  New  York  provided,  that  payments  therefor  should  be 
made  by  the  city  upon  the  production  of  vouchers,  approved  by  the  commis- 
sioners by  whom  the  building  was  to  be  erected,  a  refusal  on  their  part  to 
approve  a  bill  on  the  ground  that  they  have  no  personal  knowledge  of  the 
matter  is  unreasonable,  and  relieves  the  applicant  from  the  necessity  of  com- 
plying with  this  provision  of  the  act.  BANCKER  v.  MAYOR 409 

CERTIOR ARI  —  To  review  street  openings  —  issuing  of,  discretionary.  ]  1. 
The  writ  of  certiorari  is  an  appropriate  remedy  to  review  proceedings  for 
the  opening  and  grading  of  streets.  Although  there  is  no  statutory  limitation 
of  tune  within  which  the  writ  must  be  obtained,  it  is  not  one  of  right,  and 
the  court  can,  in  its  discretion,  refuse  it  in  any  case,  and  quash  it  where  it  has 
been  improperly  granted. 

PEOPLE  EX  REL.  ACKERLY  v.  CITY  OF  BROOKLYN 5< 

2.  Must  be  applied  for  within  two  years.]    The  general  rule  has  been  to 

quash  the  writ  where  application  therefor  has  not  been  made  in  due  season. 
and  due  season  has  usually  been  limited  to  two  years.  Id. 


INDEX.  657 

CJEELTIORARI  —  Continued.  PAM. 

3.  To  review  assessment.]    When  property  is  generally  assessed  at  one- 
third  its  value,  in  violation  of  the  assessors'  duty  the  court  will  not  reduce 
the  assessment  of  property  assessed  at  a  greater  value,  to  the  same  proportion. 

PEOPLE  EX  REL.  R.,  W.  AND  O.  R.  R.  Co.  «.  DIXON 178 

GESTT7I  Q,UE  TRUST  —  Not  a  necessary  party  to  an  action,  to  enforce  a  claim 
for  services  rendered  to  a  trust  estate. 

See  STANTON  v.  KING 4 

CHARACTER  —  Impeachment  of —  evidence  of  prior  arrest  —  inadmissible. 

See  BROWN  «.  PEOPLE 583 

CHOSE  IN  ACTION  —  Right  to  use  of  party  watt — when  a  chose  in  action 
merely. 

See  MCDONNELL  v.  CULVER 165 

CHURCH  —  Subscription  for  erection  of — payments  to  be  made  to  treasurer  to 
be  appointed  by  subscribers  —  not  enforceable  by  church  corporation  created  after 
subscription. 

See  PRESBYTERIAN  SOCIETY  OP  KNOXBORO  v.  BEACH 644 

CITY  —  Not  liable  for  failure  or  refusal  of  its  officers  to  perform  duties  imposed 
on  them,  when  not  in  the  interest  of  or  prescribed  by  the  charter  of  the  municipality. 

See  SAW-MILL  Co.  v.  CITY  OP  BROOKLYN 87 

UlVJ-Li  DAMAGE  ACT  —  Chapter  646,  Laws  of  1873  —  Recovery  of  damages 
against  owner  — permission  or  knowledge  of  owner  must  be  proved,  not  presumed 
or  inferred.}  1.  A  recovery  can  only  be  had  against  the  owner  of  a  building 
where  intoxicating  liquors  are  sold,  under  the  clause  of  chapter  646,  Laws 
of  1873,  which  provides  that  "  any  person  or  persons  owning  or  renting  or 
permitting  the  occupation  of  any  building  or  premises,  and  having  knowl- 
edge that  intoxicating  liquors  are  to  be  sold  therein,  shall  be  liable  severally 
or  jointly  with  the  person  or  persons  selling  or  giving  intoxicating  liquors 
aforesaid,  for  all  damages  sustained,  and  for  exemplary  damages,"  upon  clear 
and  satisfactory  proof  establishing  the  permission  to  occupy,  with  knowledge 
that  intoxicating  liquors  are  to  be  sold  therein ;  and  neither  the  permission  or 
the  knowledge  can  be  presumed  or  inferred.  MEAD  v.  STRATTON 148 

2. Chapter  646,  Lawn  of  1873,   constitutional.]    Chapter  646,   of  the 

Laws  of  1873,  known  as  the  civil  damage  act,  was  within  the  clear  discretion 
of  the  legislature  as  part  of  its  police  and  sovereign  power,  and  is  not 
within  any  of  the  prohibitory  clauses  of  the  Constitution. 

FRANKLIN  r>.  SCHERHERHORN lit 

3. Vague  and  inexplicit.]  The  act  is  so  vague  that  while  the  legisla- 
ture doubtless  intended  to  give  a  single  right  of  action  and  single  damages  to 
one  person,  a  right  of  action  is  given,  or  may  arise,  to  a  husband  or  wife  and 
each  of  their  chudreu,  be  they  ever  so  many.  Id. 

4.  What  recoverable  under.]    Where  the  husband  of  the  plaintiff  was  a 

cripple  and  could  earn  but  little  for  the  support  of  his  family,  consisting  of 
the  plaintiff  and  four  children,  and  he  received  a  quarterly  pension  of  fifty- 
four  dollars,  and  on  the  day  he  received  it  got  intoxicated,  in  part  at  the 
defendants'  house,  and  thereby  lost  or  had  stolen  fifty  dollars,  held,  that 
under  the  statute,  the  plaintiff,  as  wife,  was  only  entitled  to  recover  her 
proportionate  share,  or  one-fifth  thereof,  and  that  it  was  error  on  the  part 
of  the  Circuit  judge  to  refuse  BO  to  charge.    Id. 

5. Exemplary  damages.]    The  verdict  of  the  jury  was  for  $175.    Held, 

that  it  was  not  a  case  for  exemplary  damages ;  that  although  the  jury,  in  this 
class  of  cases,  have  the  right  to  give  exemplary  damages,  yet  they  should  only 
be  given  where  there  are  circumstances  of  abuse  or  aggravation  proved  on 
the  part  of  the  vendor  of  the  liquor,  which  were  wanting  hi  this  case.  Id. 

6.  -  —  Chap.  646  of  1 873  —  action  under  —  constitutional  as  to  owner  of  prem- 
ises—2  Rev.  Stat.  (Qth  ed.).  928,  §  84.]  R.  was  the  owner  and  P.  the  keeper 
of  a  place  where  intoxicating  liquors  were  sold  without  a  license.  The  son 
of  the  plaintiff,  on  a  Sunday,  took  plaintiff's  horse,  saying  he  was  going  to 
•ee  a  friend  about  four  miles  distant,  but  instead  went  directly  to  the  place 

HUN— You  VIII.         83 


658  INDEX. 

CIVIL  DAMAGE  ACT  —  Continued.  r A«« 

^f  P.,  and  became  intoxicated  there,  and,  when  in  such  a  state,  drove  the 
horee  so  violently  that  he  died.  This  action  was  brought,  under  chapter  646 
of  the  Laws  of  1878,  to  recover  the  value  of  the  horse. 

Held,  that  the  action  could  be  maintained  against  R.,  the  landlord,  jointly 
with  F.,  the  temint. 

That  the  plaintiff's  allowing  his  son  to  take  his  horse  to  drive  to  a  neigh- 
bor's, knowing  the  son  to  be  of  intemperate  habits,  was  not  such  contributory 
negligence  as  to  defeat  his  right  of  action.  BERTHOLF  v.  O'REILLY 16 

7. Contributory  negligence.]  That  the  question  of  contributory  negli- 
gence was  not  applicable  to  the  case.  Id. 

8.  Intoxication  occurring  while  violating  Sunday  law,  no  defense.]    That 

the  sending  of  the  horse  on  Sunday  did  not  deprive  the  plaintiff  of  the  right 
to  sue  for  his  property  unlawfully  destroyed.     Id. 

9.  Chap.  646  of  1878  —  when  cause  of  action  exists  under.]    It  is  not 

essential  to  the  existence  of  a  cause  of  action,  under  chapter  646  of  1878, 
against  the  vendor  of  liquors,   that  an  action  should   also  be   maintain- 
able against  the  intoxicated  person;  it   is  sufficient  if  the  wife  has  been 
injured  in  her  means   of  support  through  the  intoxication  of   the  hus- 
band.   QUAIN  v.  RUSSELL. 81d 

CLAIM —  When  only  paid  in  part — If  evidence  of  debt,  i.  e.,  promissory  note, 
be  surrendered  and  canceled  —  no  right  of  action  exists  thereafter  for  amount 
unpaid. 

See  KENT  v.  REYNOLDS 560 

Against  town  —  right  to  sue  —  Town  auditors  —  Board  of  Supervisors  — 

Commissioner  of  highways. 

See  SHERMAN  v.  TOWN  OP  HAMBURG 648 

CODE  —  Section  86  —  Substantial  inclosure  —  Usually  cultivated  and  improved — 
what  constitutes. 

See  POPE  v.  HANKER 266 

——Section  \\3-action  to  recover  town  moneys  must  be  brought  by  super- 
visor. 

See  TOWN  OF  CHAUTAUQUA  ».  QIFFORD 152 

Section  119 — construction  of  ,  as  to  right  of  stockholder  to  bring  action 

against  trustees  and  company. 

See  YOUNG  v.  DRAKE 61 

Section  120  —  lessee  and  surely —  can  be  sued  jointly  under. 

See  DECKER  v.  GAYLORD 110 

Section  122  — Interpleader — supplemental  complaint. 

See  WILSON  v.  LAWRENCE 598 

Section  144,  subdivision  6  —  cause  of  action  under  —  means  any  cause  of 

action, 

See  MACKEY  v.  AUER 180 

Sections  274,  287 — provide  the  same  remedy  by  judgment  and  execution 

against  a  married  woman,  as  the  law  affords  against  other  persons,  with  the  sin- 
gle qualification,  that  the  execution  can  be  levied  and  collected  only  out  of  her 
separate  property. 

See  ANDREWS  v.  MONTLAWS. 66 

Sections  287  and  274  provide  the  same  remedy  by  judgment  and  execution 

against  a  married  woman,  as  the  law  affords  against  other  persons,  with  the  sin- 
gle qualification  that  the  execution  can  be  levied  and  collected  only  out  of  her 
separate  property. 

Bee  ANDREWS  v.  MONTLAWS 66 

Section  304 —  Costs  when  tide  to  real  property  is  involved —  certificate  ef 

Bounty  judge  that  the  title  to  land  came  in  question  on  the  trial,  is  conclusive  on  the 
taxing  officer. 

See  LILLIB  v.  O'CoNNKB 88C 


INDEX  659 

CODE — Continued.  ,AaR 

flection  341  — Sale  in  foreclosure  may  be  adjourned  after  stay  of  proceed- 
ings on  appeal  —  until  it  can  be  determined  whether  or  not  the  sureties  will  justify. 

See  WARD  v.  JAMES 528 

Sections  352,  355.]     On  appeal  from  a  Justice's  Court,  before  the  act 

of  1863  (chap.  392),  security  was  only  required  when  a  stay  of  execution  was 
desired;  since  that  act,  where,  by  the  terms  of  section  352,  the  appellant 
is  entitled  to  a  new  trial,  security  is  required  to  perfect  such  appeal  and 
give  jurisdiction  thereon  to  the  Count}'  Court.  KUNTZ  v.  LIGHT 14 

—  Section  391  —  Examination  of  party  before  trial — notice  to  attorney.'} 
Where  a  party,  required  to  attend  before  a  judge  or  referee  to  be  examined 
as  a  witness,  in  pursuance  of  section  391  of  the  Code,  has  appeared  in  the 
action  by  an  attorney,  notice  of  the  examination  should  be  served  jpon  the 
attorney  as  well  as  upon  the  party.  PLUMMER  v.  BELDEN 465 

Section  399 — party  to  transaction  —  cannot  testify  as  to  intention  with 

which  an  act  was  done,  as  against  legal  representatives  of  other  party. 

See  TOOLEY  v.  BACON 176 

Section  399  —  next  of  kin  incompetent  under  —  though  called  to  testify 

against  his  interest. 

See  LE  CLARE  v.  STEWART 127 

Section  432 — Quo  warranto — attorney-general  cannot  be  compelled  to 

bring  action  of. 

See  PEOPLE  EX  REL.  DEMAREST  ».  FAIRCHILD 834 

Section  449  —  Conflicting  claims  to  real  property  —  Action  to  determine  — 

Costs  in,  on  dismissal  of  complaint. 

See  RUGEN  ».  COLLINS 384 

COMMISSIONERS  OF  EXCISE  —  Quo  warranto — several  persons,  claim- 
ing to  constitute  a  board,  united  as  relators. 

See  PEOPLE  EX  REL.  BABCOCK  v.  MURRAY 577 

COMMON  CARRIER  —  Parol  contract  —  when  not  merged  in  bill  of  lading. 

See  HILL  v.  SYRACUSE,  B.  AND  N.  Y.  R.  R.  Co 296 

COMPLAINT  —  Cause  of  action.]  1.  Where  a  complaint  alleged  that 
defendants  received  from  the  plaintiff  his  promissory  note  for  $584,  indorsed 
by  one  Sanborn,  upon  the  agreement  that  they  would  return  the  same  before 
maturity;  the  maturity  of  the  note;  a  failure  to  return  the  same  and  a  sale 
thereof  by  defendants  before  maturity,  held,  that  it  stated  facts  sufficient  to 
constitute  a  cause  of  action.  LOOMIS  ».  MOWRY 311 

2.  Presumption  —  that  the  face  of  a  note  is  it*  value.]    The  presumption 

is,  that  the  value  of  a  promissory  note  is  the  face  thereof.    Id. 

The  striking  out  of  irrelevant  matter  in  —  discretionary. 

See  TOWN  OP  ESSEX  v.  N.  Y.  AND  CANADA  R.  R  Co 861 

CONCEALMENT  —  Of  bankrupt  condition  — fraudulent,  when  — although  no 
representation  is  made. 

See  ROEBLING  v.  DUNCAN 503 

CONCUBINAGE —  Change  of,  into  matrimony — evidence  of.]  1.  A  cohabita- 
tion, illicit  in  its  origin,  is  presumed  to  continue  to  be  of  that  character 
unless  the  contrary  be  proved,  and  cannot  be  transformed  into  matrimony 
by  evidence  Avhich  falls  short  of  establishing  the  fact  of  an  actual  contract 
of  marriage.  Such  contract  may  be  proved  by  circumstances,  but  they  must 
be  such  as  to  exclude  the  inference  or  presumption  that  the  former  relation 
continued,  and  satisfactorily  prove  that  it  had  been  changed  into  that  of 
actual  marriage  by  mutual  consent.  FOSTER  v.  HAWLEY 68 

2.  Presumption.]    The  presumption  of  a  contract  of  marriage  cannot  be 

raised  when  the  direct  consequence  of  it  would  be  to  involve  both  parties  in 
the  crime  of  bigamy.  Id. 

CONDITION  SUBSEQUENT  —  Who  not  a  stranger  toOutitb  —  reservation 
valid. 

/S»Po*rt>.  WKIL..       418 


6(30  INDEX. 


CONDONATION — Purchase  of  stock.]  A  purchase  of  stock  of  a  corpora- 
tion, after  an  alleged  fraud  is  committed,  does  not  condone  the  fraud,  and 
the  purchaser  acquires  all  the  rights  of  the  person  of  whom  he  purchased. 

YOUNG  v.  DRAKE 61 

Qf  adultery — by  contract  between  husband  and  wife. 

See  VAN  ORDER  v.  VAN  ORDER, 815 

CONFLICTING  CLAIMS—  To  real  property.]  Where,  in  an  action 
brought  in  pursuance  of  §  449  of  the  Code,  to  determine  conflicting  claims  to 
real  property,  the  plaintiff's  complaint  is  dismissed,  the  defendant  is  entitled 
to  costs,  as  a  matter  of  right,  and  the  court  cannot  prevent  his  recovering 
the  same.  RUGEN  «.  COLLINS 384 

CONFLICTING  DECISIONS  —  Of  Court,  and  Commission  of  Appeals  — 
duty  of  trial  court.]  Upon  an  appeal  from  a  judgment  entered  upon  an  order 
dismissing  the  complaint  in  this  action,  the  Commission  of  Appeals  granted  a 
new  trial,  holding  that  upon  the  facts  proved  the  action  could  be  maintained; 
after  the  argument,  and  before  the  decision  of  this  case,  the  Court  of  Appeals, 
in  a  case  then  before  it,  decided  that  such  an  action  could  not  be  maintained. 
Upon  this  case  coming  on  for  a  new  trial,  held,  that,  as  the  Court  of  Appeals 
had  decided  that  such  an  action  could  not  be  maintained,  such  decision 
became  the  law  of  the  State,  and  as  such  binding  upon  this  court  and  the  par- 
ties to  this  action,  and  that  a  judgment  entered  upon  an  order  dismissing  the 
complaint  herein  was  proper,  and  should  be  affirmed.  (DAVIS,  P.  J.,  dissent- 
ing.) MECHANICS  AND  TRADERS'  BANK  v.  DAKIN  431 

CONSANGUINITY  —  Degree  of,  necessary  to  create  presumption  that  services 
rendered  by  one  party  for  another,  are  gratuitous. 

See  GALLAGHER  v.  VOUGHT 87 

CONSENT  —  Of  owner  —  under  mechanics'  lien  law  —  chapter  489  of  1873. 

See  CRAIG  V.  SWTNERTON 144 

Qf  owner  —  under  civil  damage  act  —  will  not  be  presumed. 

See  MEAD  v.  STRATTON 148 

CONSTITUTION  —  Article  7,  §  13  —  requiring  tax  and  object  to  be  stated  — 
relates  solely  to  State  finances,  and  does  not  govern  assessments  for  local  improve- 
ments. 

See  GUEST  v.  CITY  OF  BROOKLYN 97 

CONSTRUCTION  —  Ofwitt — providing  for  equal  division  among  next  of  kin, 
as  in  case  of  intestacy  —  as  to  rights  of  widow  and  child. 

See  MURDOCH  v.  WARD 9 

CONTRACT  —  Of  sale  —  when  title  passes  —  Delivery  —  Acts  to  designate  arti- 
des  —  to  ascertain  their  value  —  distinction.']  Defendant  agreed  to  purchase  of 
the  plaintiff  all  the  lumber  he  should  deliver,  prior  to  the  spring  or  rafting 
freshet,  at  a  place  on  the  Delaware  river  to  be  provided  by  the  defendant, 
who  also  agreed  to  furnish  a  man  to  receive  and  cull  the  same,  and  to  pay 
therefor  eleven  dollars  per  thousand  for  all  good  lumber,  and  five  dollars 
and  fifty  cents  for  the  culled ;  the  amount  of  lumber  to  be  counted  while  on 
the  bank  or  estimated  when  in  a  raft.  In  pursuance  of  this  contract  plain- 
tiff delivered  lumber  at  the  place  to  a  man  employed  by  the  defendant  to 
receive  and  cull  it;  before  the  lumber  had  been  counted  or  estimated  a  por- 
tion of  it  was  carried  away  by  a  freshet.  Held,  that  the  title  to  the  lumber 
passed  to  the  defendant  upon  its  delivery  at  the  designated  place,  and  that  he 
was  liable  for  the  price  thereof. 

If  the  act  remaining  to  be  done  is  one  of  specification  the  title  does  not 
pass;  if  only  to  ascertain  the  total  value  at  designated  rates,  the  title  does 
pass.  BURROWS  v.  WHITAKER ...  260 

Grant  of  lot  on  street  — fee  to  center,  passes,  when. 

See  MOTT  v.  MOTT 474 

Payment  of  installments  under  —  in  action  of  ejectment  brought  for  non- 
payment —  burden  of  proof  as  to  payments. 

See  EVERETT  v.  LOCKWOOD  .  85f 


INDEX.  661 

CONTRACT  —  Continued.  PA€W 

Between  husband  and  wife —  validity  of—  condonation  of  adultery. 

See  VAN  ORDER  v.  VAN  ORDER 3H 

Of  married  woman  —  benefit  of  separate  estate  —  presumption  of  law. 

See  NASH  v.  MITCHELL 471 

(Corporation  —  dividend  payable  at  future  time  —  who  entitled  to. 

See  HILL  v.  NEWICHAWANICK  Co 468 

To  extend  mortgage  —  made  between  holder  and  grantee  covenanting  to 

amtme  made  without  consent  of  grantor  (mortgagor) — discharges  mortgagor. 

See  CALVO  ».  DA  VIES 222 

Municipal  corporation  —  injunction  restraining  city  from  confirming  an 

assessment — no  defense  against  contractor  entitled  to  his  pay  On  confirmation, 
unless  diligence  is  shown  to  remove  it. 

See  BOWERY  NAT.  BANK  v.  MAYOR. 224 

Signature  —  on  margin  —  disputed  effect  of— liability  thereunder  to  be 

submitted  on  proofs  to  the  jury. 

See  HAUCK  v.  CRAIGHEAD 287 

As  to  party  wall — covenant  by  grantee  to  assume  agreement  as  to  — 

rimilar  in  principle  to  assumption  of  mortgage. 

See  STEWART  v.  ALDRICH 241 

Refusal  to  perform  —  creates  present  breach  of. 

See  WILLS  v.  SIMMONDS 189 

Of  judgment  creditor,  as  to  judgment,  if  undisclosed,  is  void  as  against 

theriff's  certificate  of  sale  on  the  judgment. 

See  FROST  v.  YONKERS  SAVINGS  BANK '_6 

Mortgage  —  After  payment  —  cannot  be  made  to  continue  as  a  valid  secu- 
rity—  trust  in  relation  to. 

See  HUBBELL  v.  BLAKESLEE 603 

In  consideration  of  marriage  —  partial  perfovmance —  Statute  of  frauds 

—  chap.  375o/1849,  §3. 

See  BROWN  v.  CONGER 625 

Agreement  simply  to  share  profits  —  does  not  prevent  the  parties  thereto 

becoming  partners  inter  sese. 

See  MUNRO  v.  WHITMAN 563 

CONTRIBUTORY  NEGLIGENCE— Civil  damage  act.]  The  plaintiff's 
allowing  his  son  to  take  his  horse  to  drive  to  a  neighbor's,  knowing  the  son  to 
be  of  intemperate  habits,  is  not  such  contributory  negligence  as  to  defeat  his 
right  of  action  for  damages  (uuder  chap.  64G  of  the  Laws  of  1873)  for  injuries 
to  the  horse  caused  by  his  son  going  to  a  tavern,  instead  of  the  neighbor's,  and 
becoming  intoxicated.  BERTIIOLP  v.  O'REILLY 16 

CONVICTION —  Of  gambler — under  indictment — when  not  to  be  set  aside. 

See  PICKETT  v.  PEOPLE 88 

CORPORATION  —  Sale  of  the  entire  property  of  one  corporation,  for  stock  of 
another.]  1.  A  corporation,  organized  under  the  laws  of  the  State  of  New 
York,  has  no  power  to  transfer  all  its  property  and  thus  terminate  its  existence, 
and  take  in  payment  stock  in  a  foreign  corporation  carrying  on  the  same  busi- 
ness. TAYLOB  v.  EARLE 

2. Acfaof  majority  of  stockholders,  do  not  bind  minority.]    Underthelaws 

of  this  State,  the  majority  of  the  stockholders  of  a  corporation  cannot  bind  the 
non-consentiiig  minority  to  a  sale  of  its  entire  property,  made  for  the  purpose 
and  merely  as  a  form  of  turning  a  New  York  company  into  a  Vermont  one, 
§o  as  to  escape  the  scrutiny  into  its  affairs  permitted  to  a  stockholder  by  the 
New  York  laws.  Id. 

8.  Rights  of  stockholders.}    A  stockholder,  under  the  New  York  law, 

becomes  such  under  the  security  thereof;  and  when  this  is  taken  from  him  has 
the  right  to  have  the  property  of  his  corporation  applied  to  the  payment  of  ita 
debts,  and  the  surplus,  if  any,  •"/' vidud  among  the  stockholders.  Id. 


662  INDEX. 

CORPORATION—  Continued, 

4.  Poteer  to  adjust  controversies  between  members  —  Improper  conduct  — 

appeal  to  court  to  determine  right  to  membership,  is  not  —  Expulsion  of  member. \ 
Where  the  charter  of  a  corporation  declared  its  purpose,  among  other  things, 
to  be  "  to  adjust  controversies  between  its  members  and  to  establish  just  and 
equitable  principles  in   the  cotton  trade,"  and  gave  it  power  to  make  all 
proper  and  needful  by-laws,  not  contrary  to  the  Constitution  and  laws  of  the 
State  of  New  York  or  of  the  United  States;  and  "  to  admit  new  members 
and  expel  any  member  in  such  manner  as  may  be  provided  by  the  by-laws;  " 
and  the  by-laws  provided  for  expulsion  for  improper  conduct,  but  did  not 
state  what  should  be  considered  as  such : 

Hdd,  that  there  being  in  the  charter  or  by-laws  of  the  corporation,  DO 
express  or  implied  authority  to  determine  who  was  the  owner  of  a  right  to  a 
membership  in  dispute,  a  member  was  not  guilty  of  improper  conduct 
warranting  his  expulsion,  for  resorting  to  the  courts  to  prevent  the  corpora- 
tion from  disposing  of  such  a  right  claimed  by  him. 

That  in  refusing  to  submit  to  a  report  against  his  title,  a  member  was  not 
acting  in  antagonism  to  the  corporate  power  of  "adjusting  controversies 
between  its  members"  or  of  "establishing  just  and  equitable  principles 
in  the  cotton  trade." 

That  his  right  to  appeal  to  another  tribunal,  if  to  be  foreclosed,  should  be 
so  by  explicit  contract  or  agreement  (not  shown  in  this  case),  not  by  mere  con- 
struction of  language  employed  in  a  by-law,  or  by  implication  from  something 
contained  in  it;  for  forfeitures  depend  upon  clear  and  explicit  language,  and 
are  even  then  looked  upon  with  disfavor,  and  the  presumption  should  be 
against  the  power  to  expel,  except  for  the  causes  recognized  in  the  adjudged 
cases.  PEOPLE  EX  REL.  ELLIOTT  v.  N.  Y.  COTTON  EXCHANGE 2H 

5.  Dissolution  of—  Disagreement  of  trustees  —  Sale  of  assets  —  chapter 

442  of  1876.]     Under  the  provisions  of  chapter  442  of  1876,  authorizing  the 
dissolution  of  a  corporation  in  case  the  trustees  are  unable  to  agree   as  to 
the  management  thereof,  the  court  may,  in  proper  cases,  direct  the  assets 
remaining  after  the  payment  of  the  expenses  of  the  receivership  and  of  the 
debts  and  liabilities  of  the  corporation,  to  be  sold  and  the  proceeds  divided 
among  the  stockholders.     MATTER  OP  WOVEN  TAPE  SKIRT  Co 608 

Action  by  stockholders  against  trustees  and  company  —  wJien  maintainable 

—  Code,  §  119  —  evidence —  that  corporation  will  not  prosecute. 

See  YOUNG  v.  DRAKE 61 

COSTS  —  On  foreclosure — first  payment  out  of  proceed*  of  sale,  in  case  of  defi- 
ciency.'] 1.  Where  a  judgment  of  foreclosure  against  a  grantor  of  a  mortgage 
assumed  by  his  grantee  has  been  paid  by  grantor  —  although  the  grantee  was 
not  notified  of  the  foreclosure  suit  —  the  grantor  is  entitled  to  recover  of  his 
grantee  the  amount  of  the  judgment  paid  by  him,  and  the  costs  and  expenses 
of  the  foreclosure  should  be  deducted  from  the  amount  realized  upon  the 
sale  of  the  property.  COMBTOCK  v.  DROHAN 878 

'2. Conflicting  claims  to  real  property —  Code,  §  449.]  Where,  in  an  action 

brought  in  pursuance  of  section  449  of  the  Code,  to  determine  conflicting 
claims  to  real  property,  the  plaintiff's  complaint  is  dismissed,  the  defendant 
is  entitled  to  costs,  as  a  matter  of  right,  and  the  court  cannot  prevent  his 
recovering  the  same.  RTTGEN  «.  COLLINS 884 

3.  Judgment  reversed  on  appeal,  "  costs  to  defendant  to  abide  event "  —  only 

affects  costs  of  appeal.]    Upon  appeal   from  a  judgment   recovered  by  the 
plaintiff  a  new  trial  was  granted,  "  with  costs  to  the  defendant  to  abide 
the  event. "    Plaintiff  having  recovered  a  judgment  upon  the  new  trial,  taxed 
his  costs  for  both  trials.     Held,  that  he  was  entitled  so  to  do  ;  that  the  ordei 
of  the  General  Term  only  deprived  him  of  the  costs  of  the  appeal. 

HOWELL  T.  VAN  SICLKN 534 

4.  Security  for  —  resident  aliens.]    The  statute  requiring  non-resident* 

to  give  security  for  costs  in  actions  brought  by  them,  does  not  require  such 
security  to  be  given  by  aliens  residing  in  this  State,  unless  such  residence  is 
shown  to  be  merely  temporary.     NORTON  «.  MACKIE 520 

Right  to,  of  attorney  in  the  city  of  New  York,  for  the  coUtctw*  ofj+r*mal 

taxes. 

•See  GALE  0.  MAYOR 870 


INDEX.  663 

COSTS  —  Continued.  PA0m 

Taxation  of — dispute  as  to  whether  title  to  real  property  was  involved — 

oa-tijieate  of  county  judge  conclusive  upon  the  taxing  officer,  to  show  that  the  title 
to  land  came  in  question  on  the  trial. 

See  LILLIS  v.  O'CoNNER 280 

Payment  of — imposed  on  attorney  for  insei-tiott  of  irrelevant  and  scandal- 
ous matter. 

See  McVBT  v.  CANTRELL  and  TADDIKKN  v.  CANTRKLL. 583 

COUNTER-CLAIM  —  To  freight  —  detention.]  1.  A  counter-claim  to  a  claim 
for  freight  under  a  charter  party,  can  be  sustained  for  a  loss  occasioned  by 
the  excessive  drainage  of  hogsheads  of  sugar,  caused  by  the  detention  of  the 
vessel  after  a  full  cargo  has  been  obtained,  when  such  detention  arises  from 
-he  illegal  acts  of  the  master. 

Also  for  moneys  compulsorily  paid  by  the   agent  of  the  charterer,  to 
release  their  property  seized,  because  of  the  unlawful  act  of  the  master. 

EL  WELL  c.  SKIDDY 78 

2. Practice.]    A  party,  except  in  cases  commenced  in  a  Justice's  Court, 

having  a  demand  against  another,  can  maintain  an  action  therefor,  although 
at  the  time  an  action  is  pending  against  him  by  the  same  party,  wherein  he 
could  have  set  up  such  demand  as  a  counter-claim.  INSLEE  v.  HAMPTON  . . .  330 

COUNTY  COURT  —  Power  to  order  tax  to  be  refunded  — §  3,  chap.  647  of 
1866  —  §  5,  chap.  855  of  1869  —  chap.  695  of  1871.]  1.  Where  lands  used  for 
the  charitable  purposes  of  an  association  are  exempted  by  statute  from  taxa- 
tion, and  the  assessors  of  the  town  in  which  they  lie  illegally  and  improp- 
erly assess  them,  the  County  Court,  on  application  of  the  party  aggrieved, 
has  power,  under  section  5,  chapter  855,  Laws  of  1869,  as  amended  by  chapter 
695  of  the  Laws  of  1871,  to  order  the  taxes  (when  paid)  to  be  refunded. 

MATTER  OP  N.  Y.  CATHOLIC  PROTECTORY 91 

3. Assessors  —  acts  of,  renewable  by  County  Court.}    Where  the  assessors 

aave  power  to  act,  the  County  Court  cannot  interfere  with  the  exercise  of  the 
power,  but  where  they  have  no  power  to  act.  the  assessment  is  illegal  and 
improper,  and  the  County  Court  can  order  the  tax  paid  on  such  illegal 
assessment  to  be  refunded.  /'/. 

Has  no  power,  on  motion,  to  set  aside  transcript  of  and  vacate  judgment 

of  Justice's  Court  —  the  remedy  of  the  defendant  is  by  appeal. 

See  DOUGLASS  v.  REILLY 86 

Appeal  to,  when  security  onjurisdictional. 

See  KUNTZ  v.  LICHT 14 

Duty  of  to  pass  upon  objections  as  to  regularity,  etc.,  taken  in  Justice's 

Court. 

See  MAXON  v.  REID 618 

COUNTY  JUDGE  —  Writ  of  error  —  to  Court  of  General  Sessions  —  tested  and 
nigned  by  —  a  nullity. 

See  HINMAN  v.  PEOPLE 647 

COURT  OF  APPEALS  —  Conflicting  decisions  of,  and  Commission  of 
Appeals  —  duty  of  trial  court. 

See  MECHANICS  AND  TRADERS'  BANK  v.  DAKIN 481 

COVENANT  —  Of  seizin  and  warranty  —  breach  of. 

See  DUSENBURY  v.  CALLAOHAN 54* 

COVERTURE  —  Married  woman  —  assumption  of  mortgage  by.  ]  A.  executed 
a  mortgage  on  certain  premises  to  B. ,  and  afterwards  sold  and  conveyed 
them  to  C.,  and  by  various  mesne  conveyances  they  came  to  T.,  a  married 
woman.  In  none  of  the  conveyances  except  the  one  to  T.,  was  there  any 
covenant  by  the  grantee  to  pay  said  mortgage.  Held,  that  T.  was  liable  on 
hei  covenant.  Further,  that  her  coverture  was  no  defense  to  the  action, 
as  the  liability  was  contracted  upon  the  purchase  of  real  estate,  and  her  cov- 
enant was  a  contract  to  pay  a  portion  of  the  purchase  money,  and  was, 
.herefore,  for  the  benefit  of  her  separate  estate.  VROOHAN  t>.  TURNER 78 


664  INDEX. 

MM 
CREDITORS  —  Notice  to,  to  preterit  claims  —  when  sufficient  — %  R.  S.,  88, 

See  PRENTICE  t>.  WHITNEY 80C 

CRIMINAL  LAW — Indictment — for  marrying  a  married  person  —  suffi- 
ciency of  allegations  an  to  prior  marriage. 

See  SAUSER  v.  PEOPLE 303 

- —  Gammon  gambler  —  indictment,  sufficiency  of  averment  in. 

Bee  PiCKETT  t>.  PEOPLE 83 

Forgery  — name  of  fictitious  person  —  Evidence  of  payment  —  immaterial 

—  Evidence  of  prior  arrest  of  prisoner  —  Impeaching  character  of  witness — objec- 
tion may  be  taken  by  counsel. 

See  BROWN  v.  PEOPLE 562 

Writ  of  error  —  what  errors  will  be  considered  on.]    Upon  the  trial  of 

the  plaintiff  in  error  for  rape  the  court  refused  to  charge  that  he  must  have 
"  accomplished  his  purpose  in  spite  of  the  utmost  reluctance  and  resistance 
on  her  part."  The  prisoner  was  convicted  of  an  assault  with  intent  to 
commit  rape.  Upon  a  writ  of  error  to  review  this  conviction,  held,  that 
as  the  refusal  to  charge,  even  if  it  were  error,  did  not  in  any  way  affect  the 
crime  of  which  he  was  convicted,  but  only  that  of  which  he  was  acquitted, 
it  furnished  no  ground  to  reverse  the  judgment.  MTER  v.  PEOPLE 538 

CRIMINAL  PROCEEDINGS  —  Fees  in. 

See  PEOPLE  EX  REL.  VAN  TASSEL  v.  SUPERVISORS 275 

CROSS-EXAMINATION  —  A  question  to  test  the  degree  of  confidence  a  wit- 
ness has  in  the  accuracy  of  his  memory,  is  proper  on. 

See  PARMELEE  v.  PEOPLE 623 

CULTIVATION — And  improvement — what  is,  under  sub.  2,  §  85,  of  the  Code. 

See  POPE  v.  HANMER 265 

CTTRTESY —  Tenancy  by  the  —  subject  to  debts  of  wife.}  1.  Where  a  wife, 
who  has  acquired  title  to  real  estate  since  the  acts  of  1848,  dies  intestate,  her 
husband  is  entitled  to  an  estate,  as  tenant  by  the  curtesy,  in  the  lands  of 
which  she  dies  seized,  subject  to  the  payment  of  her  debts. 

ARROWSMTTH  v.  ARROWSMITH 606 

2.  Surrogate,  sale  of  lands}  The  surrogate  has  power  to  direct  the  sale 

of  lands  in  payment  of  the  debts  of. the  deceased;  and  the  husband  will 
acquire  the  same  interest  in  the  surplus  remaining,  after  payment  of  the  said 
debts,  as  he  had  in  the  land  itself.  (Id.) 

3. Power  of  to  distribute  surplus.}    Although  the  surrogate  has  power 

under  the  Revised  Statutes  (3  R.  S.  [6th  ed.],  116,  and  chap.  150  of  1850),  to 
order  the  investment  of  such  surplus,  on  the  ground  that  the  husband  is 
entitled  to  an  estate  for  life  therein,  he  has  no  power  to  direct  that  such  prop- 
erty be  applied  in  payment  of  the  debts  of  the  husband.  He  can  pass  upon 
the  claims  of  creditors  of  the  intestate,  but  not  upon  those  of  creditors  of 
the  husband.  (Id ) 

DAMAGES  —  Excessive  —  verdict  of  jury — when  not  set  aside.}  Upon  a 
former  trial  plaintiff  recovered  a  verdict  for  $5,000,  which  was  set  aside  by  the 
General  Term,  on  the  ground  that  the  damages  awarded  were  excessive. 
Upon  the  second  trial  a  verdict  was  recovered  of  $4,000.  Held,  that  this 
second  verdict,  rendered  upon  substantially  the  same  facts  as  were  presented 
to  the  first  jury,  must  be  accepted  as  final  and  conclusive. 

PECK  v.  N.  Y.  CEN.  AND  HUD.  R.  R  R  Co 288 

Amount  of,  to  be  determined  by  the  court  —  witness  should  not  be  asked  to 

ttatett. 

See  FLEMING  v.  D.  AND  H.  CANAL  Co 856 

Meaxure  of  against  a  city — for  unauthorized  acts  of  its  officer*  in  remov- 
ing buildings,  which  the  owner  neglected  to  do,  on  opening  a  street. 

See  PETEBS  v.  MAYOR 40? 


INDEX.  665 

DAMAGES  —  Continued.  rAM. 

Caused  by  injunction  —  what  allowable  as — Bad  management  of  receiver 

—  Allowance  to  —  counsel  fee  —  Injury  to  business. 

See  HOTCHKISS  v.  PLATT 46 

Under  civil  damage  act  —  chapter  646  of  1873  —  what  recoverable  under  — 

txemplary  damages. 

See  FRANKLIN  v.  SCHERMERHORN 112 

Measure  of —  Bona  fide  purchaser,  of  negotiable  paper  invalid  in  Jiands 

of  payee  —  recovery  by,  restricted  to  amount  paid. 

See  TODD  v.  SHELBOURNE 510 

Measure  of,  in  action  on  promissory  notes,  obtained  by  fraudulent  repre- 
sentations —  where  notes  are  not  transferred  before  maturity. 

See  THATER  v.  MANLY 550 

When  recoverable  for  the  diversion  of  surface  water  on  to  the  lands  of  an 

adjacent  owner. 

See  BASTABLE  v.  CITY  OF  SYRACUSE 587 

DEATH  —  Revoke*  agency — so  that  an  obligation  created  after  deatii  of  princi- 
pal, cannot  be  enforced  against  his  representatives. 

See  HELMER  v.  ST.  JOHN 166 

Of  one  joint  debtor,  during  pendency  of  action  —  revival  of  against  hi* 

representatives. 

See  MASTEN  v.  BLACKWBLL 818 

DEBTOR.  —  Discharge  of,  from  imprisonment — 2  B.  S.,  chapter  5,  title  1, 
article  6.]  1.  Under  the  provisions  of  the  act  providing  for  the  discharge  of 
imprisoned  debtors,  it  is  sufficient  to  prevent  the  discharge  of  a  debtor  if 
it  be  shown  that  he  has  been  guilty  of  the  acts  which  he  is  required  to 
negative  by  the  form  of  oath  prescribed  by  section  5  of  said  act. 

MATTER  OP  BRADY 487 

2. "Just  and  fair" '  —  meaning  of.}    It  sufficiently  appears  that  the 

proceedings  of  the  debtor  have  not  been  "  just  and  fair  "  within  the  meaning 
?f  section  8,  if  it  be  shown  that  he  has  disposed  of,  or  made  over  any  part 
of  his  property  with  intent  to  injure  or  defraud  any  of  his  creditors,  although 
such  acts  were  committed  before  the  commencement  of  the  action  on  which 
he  is  imprisoned,  provided  they  are  shown  to  be  so  far  connected  with 
the  action,  as  to  be  the  grounds  upon  which  the  order  for  his  imprisonment 
was  based.  Id. 

3. What  must  be  shown  to  prevent  discharge.]    It  is  not  necessary  that  it 

ehoujd  be  shown  that  the  petitioner  was,  at  the  time  of  the  application  for  a 
discharge,  concealing  or  attempting  to  conceal  property,  or  had  then  in  his 
possession  or  under  his  control  any  property  or  rights  which  he  then  secreted, 
or  had  secreted,  in  contemplation  of  such  proceedings.  Id. 

DECISION — Of  "highest  tribunal"  —  acts  done  under — Protection  against 
penalty  or  forfeiture  therefor. 

See  CHENANGO  BRIDGE  Co.  v.  PAIGE 292 

Of  Court  and  Commission  of  Appeals  —  when  conflicting,  duty  of  trial 

court. 

See  MECHANICS  AND  TRADERS'  BANK  v.  DAKIN 481 

DEED  —  Covenant  in,  to  assume  mortgage,  enures  to  benefit  of  mortgagee. 

See  CAMPBELL  v.  SMITH  6 

Distinction  between  the  effect  of  tuch  covenant,  when  made  by  grantee  and 

iwrtgagee. 

See  CAMPBELL  v.  SMITH 6 

DEFAULT  —  Judgment  by  —  irregular,  if  judgment  taken  is  greater  than  that 
ttked  for  in  the  complaint. 

See  ANDREWS  v.  MONILAWH 64 

HUN— VOL.  VIII.         84 


566  INDEX. 

MM. 

DEFINITION—  "  Substantial  inclosure"  —  what  it,  undo*  >ub.  1,  §  85  of  the 
Code. 

See  POPB  c.  HANKER  ...........................       ..............  265 

-  "  Just  and  fair  "  —  meaning  of,  in  2  R.  3.,  chap.  5,  ti'T  '  ,  art.  6. 

See  MATTER  OP  BRADY  ...............................  .  .......  437 

-  "  Difference  and  costs  and  expenses  on  resale  "  —  Subsequr  '  taxes  included 
fe 

See  Hi  in  .  ».  LAW  ..................................  ........  .....  251 

-  "Cultivation  and  improvement  "  —  what  is,  under  sub.  2,  §  P*  of  the  Code. 

See  POPE  c.   HAXMER  ...............................     ..........  265 

-  '  '  Costs  to  defendants  to  abide  event  "  —  on  reversal  of  judgmf  •*  '  on  appeal 
—  only  affects  costs  of  appeal. 

See  HOWELL  v.  VAN  SICLEN  ....................................  524 

DEGRADING  QUESTION  —  Objection  to  may  be  taken  by  cour  *l,  when.] 
Objection  to  question  tending  to  degrade,  may  be  taken  by  com  rel  when 
witness  is  a  party.  BROWN  v.  PEOPLE  ..................................  562 

DELIVERY  —  Of  good*  —  several  bills  of  lading  —  the  holder  of  whicJ-  VU  enti- 
tled to. 

See  MERCHANTS'  BANK  v.  UNION  R.  R.  AND  TRANS.  Co  ............  249 


-  Of  personal  property  —  distinction  between  acts  to  be  done,  to 

articles  and  those  to  ascertain  their  value  —  as  affecting  the  question  of 
delivery. 

See  BURROWS  v.  WHITAKER  .................................       .  260 

-  Liability  on  indorsement  of  note  —  may  be  limited  by  the  terms  of  fat 
delivery,  when. 

See  LATTIKER  v.  HILL  ...........................................  '  71 

DEMURRAGE  —  When  party  not  entitled  to  —  Counter-claim  ]  A  master 
of  a  vessel  chartered  her  for  three  consecutive  voyages  to  Cuba  and  return 
to  New  York,  the  first  to  start  from  a  port  in  Canada,  the  outward  voyages 
to  be  with  sugar-box  snooks,  the  return  ones  with  sugar  and  molasses. 
The  charter  party  specified  a  certain  rate  of  freight  and  also  of  demurrage 
and  bound  the  cargo  to  the  performance  of  the  charter  by  tho,  charterer. 
The  vessel  was  detained  in  Cuba  by  the  custom  authorities  on  accrunt  of  the 
illegal  act  of  the  master.  A  portion  of  the  cargo  was  also  seized  on  account 
thereof  and  its  release  could  only  be  obtained  by  the  payment  of  $14,559.38  by 
the  agent  of  the  charterer. 

Held,  that  the  master  was  not  entitled  to  demurrage  for  delay  occasioned 
by  the  seizure  or  detention  of  the  vessel  for  his  own  unlawful  act. 

Held,  also,  that  a  counter-claim  to  a  claim  for  freight  thereunder,  could 
be  sustained  for  loss  occasioned  by  the  excessive  drainage  of  the  hogsheads 
of  sugar  caused  by  the  detention  of  the  vessel  after  a  full  cargo  h*d  been 
obtained,  such  detention  arising  from  the  illegal  act  of  the  master. 

Held,  also,  that  a  counter-claim  could  be  sustained  for  moneys  compulsorily 
paid  by  the  agent  of  the  charterer,  to  release  their  property  seized  because 
of  the  unlawful  act  of  the  master.  ELWELL  v.  SKIDDT  ........  .  ...........  7* 

DEMURRER  —  Misjoinder  of  causes  of  action  —  what  is  not.  ]  1.  In  an  action 
to  foreclose  a  mechanic's  lien,  although  other  persons  than  the  one  against 
whom  the  claim  was  filed  as  owner  of  the  premises  are  made  parties  defend- 
ant, on  the  ground  that  conveyances  by  and  to  them,  of  the  premises,  were 
fraudulently  made  to  defeat  plaintiff's  claim,  and  the  complaint  asks  to  have 
«uch  conveyances  declared  void,  yet  there  is  owly  one  cause  of  action  set 
f«rth  in  the  complaint  and  the  same  is  not  demurrable.  TISDALE  v.  MOORE,  18 

2.  -  Prayer  for  relief.]  Even  if  the  prayer  for  judgment,  upon  the  facts 
alleged,  be  for  too  much,  it  is  not  ground  for  demurrer.  Id. 

-  When  the  facts  alleged  justify  any  relief  —  though  not  the  relief  asked  for  — 
will  not  be  sustained. 

See  MACKET  v.  ATTER  .........................................  180 

-  To  complaint  on  note  signed  J.  8.  3fcO.,  agent 

See  MOORE  v.  MCCLUBE.  .  .  ,.55*? 


INDEX.  (567 

MM 

DEPOSIT  —  Village  of— chap.  330  0/1873  (charter)  not  affected  by  chap.  444 
ef  1874  —  License  law.  » 

See  VILLAGE  OF  DEPOSIT  D.  DEVEREUX 317 

DISCHARGE  —  Of  debtor  — from  imprisonment —  '•'just  and  fair"  —  mean- 
ing of —  wliat  must  be  shown  to  prevent  discharge. 

See  MATTER  OF  BRADY .  437 

DISCONTINUANCE  —  Of  action,  by  overseer  of  the  poor— where  prosecu- 
tion is  brought  in  his  name  by  third  person  under  chap.  820  of  1878  for  violation 
of  excise  law  —  not  allowed. 

See  RECORD  «.  MKSSEV  ;y." 283 

Of  action,  after  order  thenm,,  appointing  physicians  to  examine  as  to 

pregnancy  of  widow — and  charging  their  fees  on  the  estate,  does  not  affect  claim 
of  physicians  on  such  estate  for  such  fees. 

See  ROLLWAGBN  v.  POWELL 210 

DISCRETIONARY  —  The  striking  out  of  irrelevant  matter  in  complaint. 

See  TOWN  OF  ESSEX  v.  N.  Y.  AND  CANADA  R.  R.  Co 361 

DISEASE  —  Contracted  by  servant  through  negligence  of  master — liability  of 
master  therefor. 

See  SPAN  v.  ELY 255 

DISSOLUTION* —  Of  corporation  —  disagreement  of  trustees — sale  of  assets 
—chap.  442  of  1876. 

See  MATTER  OF  WOVEN  TAPE  SKIRT  Co 508 

DISTRICT  ATTORNEY  —  Assistant,  of  New  York— State  officer  — salary 
rf.]  1.  The  assistant  district  attorney  of  the  county  of  New  York  is  an  officer 
of  the  State  government,  and  not  of  that  county,  and  the  board  of  apportion- 
ment created  by  chapter  583  of  1871,  "  to  regulate  all  salaries  of  officers  and 
employes  of  the  city  and  county  governments  "  had  no  power  to  reduce  his 
saUuy.  FELLOWS  v.  MAYOR 484 

2.  Tjocul  act  —  subject  expressed.']     Where  a  provision  establishing  the 

salary  of  the  assistant  district  attorney  of  the  county  of  New  York  was  con- 
tained in  an  act  entitled  "  An  act  to  make  further  provision  for  the  govern- 
ment of  the  county  of  New  York,"  held,  that  the  provision  was  local  as  it 
affected  the  salary  of  the  officers  in  a  particular  county  only,  yet  that  the 
title  of  the  act  sufficiently  expressed  the  subject.  Id. 

DIVIDEND  —  Payable  at  future  time  —  who  entitled  to.  ]  The  board  of 
directors  of  a  corporation  passed,  on  January  25,  1873,  the  following  resolu- 
tion: "At  a  meeting  of  the  board  of  directors,  held  this  day,  voted  to  pay  a 
dividend  of  four  per  cent  this  day,  and  another  of  like  amount  at  option  of 
agent  from  earnings  of  last  year." 

The  plaintiff  was  on  that  day  the  owner  of  certain  shares  of  the  company's 
stock,  then  deposited  by  him  as  collateral  security  with  a  bank,  by  which 
they  were,  in  July,  sold  at  private  sale.  On  the  seventh  of  November,  the 
company's  agent  declared  the  second  dividend  of  four  per  cent,  in  pursuance 
of  the  resolution.  Held,  that  the  plaintiff  was  the  owner  of  the  stock  at  the 
lime  the  dividend  was  declared,  uiid  that  he,  and  not  the  purchaser,  was  enti- 
tled thereto.  HILL  «.  NEWICHAWANICK  Co 459 

EASEMENT  —  Grant  of  use  of  water  —  amount  not  defined — easement  limited 
to  amount  firxl  taken.]  1.  A  grant  was  made  to  use  certain  water  and  lay 
down  pipes  therefor,  but  the  size  of  the  pipes  and  the  amount  of  wafer  to 
be  taken  were  not  defined.  Pipes  were  laid,  and  the  water  that  they  could 
supply  used  for  a  number  of  years.  HeM.,  that  this  limited  the  extent  of 
the  grant,  and  the  grantee  was  liable  for  damages  occasioned  by  the  diver- 
sion of  a  greater  quantity  of  water  than  originally  used,  caused  by  taking  up 
such  pipes  and  replacing  them  by  larger  ones. 

ONTHANK  v.  LAKE  SHORE  AND  M.  8.  R.  R.  Co 181 

2.  The  grant  being  of  an  easement,  the  occupation  under  it  must  be 

regarded  as  the  exercise  of  the  right  granted,  applying  the  same  principles  to 
easements  of  water  as  of  land.  Id. 


668  INDEX. 

BASEMENT  —  Continued.  r  AM 

8.  Union  of  semient  and  dominant  estates.}    Where  a  right  of  way 

over  a  private  street  or  lane  exists  in  favor  of  the  several  lots  fronting  thereon, 
and  all  such  lots  are  subsequently  acquired  by  one  person,  the  easement  is 
thereby  extinguished.  MOTT  t>.  MOTT 474 

4  Grant  of  lot  on  street  — fee  to  center,  passes  when.]     Where  the  owner 

of  land  conveyed  lots  fronting  on  a  private  lane,  the  deed  describing  them  as 
running  "to  the  side  of  a  lane  twenty  feet  wide,  thence  along  the  same,"  and 
then  providing  "and  also  the  privilege  of  using  from  time  to  time  aiid  at  all 
times  hereafter  *  *  *  the  said  lane,"  the  grantee  to  pay  his  proportional 
part  of  the  expenses  of  keeping  the  lane  in  repair,  held,  that  there  was  no 
intention  in  the  grantor  to  reserve  to  himself  the  lane,  and  that  one  acquiring 
title  to  all  the  lots  fronting  thereon  became  the  owner  thereof  in  fee,  and  waa 
entitled  to  devote  the  same  to  any  use  he  might  think  proper.  Id. 

EJECTMENT  —  Brought  for  non-payment  of  installments  under  contract  — 
burden  of  proof  as  to  payments. 

See  EVERETT  v.  LOCKWOOD 866 

EMINENT  DOMAIN  —  Railroad  —  highway.  ]  No  title  acquired  by  a  rail- 
road to  the  land,  by  reason  of  legislative  permission  to  lay  down  their  tracks 
on  a  highway.  MATTER  OF  PROSPECT  PARK  AND  C.  I.  R.  R.  Co 30 

EMPLOYMENT  —  Of  brakeman  by  railroad  company  —  scope  of — forcibly 
ejecting  passenger. 

See  PECK  r..  N.  Y.  CEN.  AND  HUD.  R.  R.  R.  Co 286 

ERIE  RAILWAY  COMPANY  —  No  obligation  to  keep  open  its  ticket  offices 
—  Vare — payment  of,  at  office  or  to  conductor  —  different  rates.  ]  1.  Under  sec- 
tion 14  of  chapter  224  of  1832,  authorizing  the  Erie  Railway  Company  "  to 
fix,  regulate  and  receive  the"  tolls  and  charges  by  them  to  be  received  for 
the  transportation  of  property  or  persons,"  it  may  establish  two  rates  of  fare, 
discriminating  between  the  cases  where  the  ticket  is  purchased  of  a  conduc- 
tor upon  a  train,  and  where  it  is  purchased  at  a  ticket  office. 

BORDEAUX  v.  ERIE  RAILWAY  Co 579 

2.  The  company  is  not  bound  to  keep  its  ticket  offices  open  at  or  for 

any  particular  time,  and  the  fact  that  a  passenger  is  unable  to  procure  a  ticket 
in  consequence  of  the  office  being  shut,  will  not  entitle  him  to  be  carried  to 
his  place  of  destination  upon  payment  of  the  amount  for  which  he  could 
have  procured  a  ticket  at  the  office  had  it  been  open.  Id. 

ESTATES  —  Sentient  and  dominant  —  union  of —  Grant  of  lot  on  street — fee 
to  center  —  when  passes. 

See  MOTT  v.  MOTT 474 

EVIDENCE  —  Concubinage.]  1.  Evidence  that  concubinage  of  the  parties 
has  been  changed  into  matrimony,  may  be  proved  by  circumstances,  but  they 
must  be  such  as  to  exclude  the  inference  or  presumption  that  the  former  rela- 
tion continued,  and  satisfactorily  prove  that  it  had  been  changed  into  that  of 
actual  marriage  by  mutual  consent.  FOSTER  v.  HAWLET 68 

2.  That  corporation  will  not  prosecute.]    Where  the  accused  persons  are 

a  majority  of  the  trustees  of  a  corporation,  it  is  sufficient  evidence  that  the 
corporation  will  not  prosecute  an  action  against  them,  and  that  an  application 
to  the  trustees  to  direct  a  suit  to  be  brought  against  themselves,  would  be 
useless.     YOUNG  T.  DRAKE 61 

3.  Of  payment  of  forged  instrument  —  on    indictment  for  forgery.] 

Upon  the  trial  of  an  indictment  for  uttering  a  forged  promissory  note,  evi- 
dence tending  to  show  that  the  note  had  been  paid  is  immaterial,  and  is  prop- 
erly excluded.    BROWN  v.  PEOPLE 562 

4. Gross-examination.]    A  question  to  test  the  degree  of  confidence  a 

witness  has  in  the  accuracy  of  his  memory  is  proper. 

PARHELBE  t>.  PEOPLE  623 

5.  Prior  arrest.]    The  mere  fact  of  a  prisoner's  prior  arrest  has  no  ten- 
dency to  impeach  his  character  in  any  particular.    BROWN  v.  PEOPLE 561 


INDEX  669 

EVIDENCE  —  Conttnutd.  PAM> 

-  Damages  —  amount  of,  to  be  determined  by  the  court  —  vtitness  should  not 
be  anted  to  state  it. 

See  FLEMING  v.  D.  AND  H.  CANAL  Co  ............................  858 

-  Presumption  —  that  the  face  of  a  promissory  note  is  its  value. 

See  LOOMIS  v.  J>!OWRY 


-  Express  company  —proof  of  signature  to  receipt  of. 

See  ARMSTRONG  v.  FARGO  .......................................  175 

-  Party  to  transaction  —  cannot  testify  as  to  intention  with  which  an  act 
wu  done  —  as  against  legal  representatives  of  other  party  —  Code,  §  399. 

See  TOOLEY  v.  BACON  ............................  \  ...........  178 

-  Receipt  —  when  evidence  of  promise  to  pay  another,  the  money  received. 

See  HOWE  MACHINE  Co.  v.  FAGAN  ..............................  174 

—  -  Under  chapter^  646,  Laws  of  1873,  to  recover  damages  against  owner  of 
premises  where  intoxicating  liquors  are  sold  —  permission  or  knowledge  of  the 
owner  must  be  proved,  not  presumed  or  inferred. 

See  MEAD  v.  STRATTON  ..........................................  148 

-  Defense  not  pleaded  —  to  controvert  matter  set  up  in  answer  —  admissible. 

See  COUGHLIN  v.  N.  Y.  CEN.  AND  HUD.  R.  R.  R.  Co  ...............  136 

-  Presumption  that  services  rendered  between  relatives  are  gratuitous. 

See  GALLAGHER  v.  VOUGHT  ......................................    87 

—  Refusal  to  restate,  when  requested  by  jury,  —  error  —  Pleadings  beyond  por- 
tion admitted  by  the  answer  —  not  evidence  to  go  to  the  jury. 

See  DREW  v.  ANDREWS  ...............................  '  ...........    23 

-  Inquisition  —  prima  facie  evidence  of  unsound  mind  —  burden  of  proof. 

See  HICKS  v.  MARSHALL  .........................................  827 

—  Parol  contract  —  when  not  merged  in  subsequent  written  contract  —  Bill  of 
lading. 

See  HILL  v.  SYRACUSE,  B.  AND  N.  Y.  R.  R.  Co  ...................  296 

-  Presumption  —  of  fact,  to  sustain  referee's  report. 

See  BANCKER  v.  MAYOR  .........................................  409 

-  Burden  of  proof,  as  to  payments  —  in  an  action  of  ejectment,  brought  for 
non-payment  of  ir^allments  under  contract. 

See  EVERETT  v.  LOCKWOOD  ......................................  366 

-  Judgment  roll  against  grantor  in  foreclosure  of  mortgage  assumed  by 
grantee  —  evidence  against  grantee,  although  not  notified  of  action. 

See  COMSTOCK  v.  DROHAN.  ......................................  878 

-  Credit  due  to  uncontradicted  statements  by  a  witness  —  how  affected  by  his 
interest  in  suit. 

See  SHERIDAN  v.  MAYOR  -----  ....................................  424 

-  Action  for  salary  —  Receipt  —  ignorance  of  its  contents  —  acts  of  receiptor 
inconsistent  with  knowledge  thereof  —  not  admissible  as. 

See  DREW  v.  MAYOR  ..........................................  443 

-  Obstruction,  of  streets  —  license  from  corporation,  wJien  presumed  —  injury 
to  traveler  —  liability  of  party  causing  —  bound  by  judgment  againut  corporation. 

See  VILLAGE  OF  SENECA  FALLS  v.  ZALINBKI  ......................  571 

—  —  Railroad  company  —  Negligence  —  fire  occasioned  by  sparks  —  burden  of 

proof- 

See  McCAiG  v.  ERIE  RAILWAY  Co  ...............................  599 

—  Judgment  in  ejectment  —  conclusive  at  to  title  to  land  in  action  in  Justice1  1 
Court. 

See  HALEY  v.  WHEELER  .........................................  569 

EXAMINATION  —  Of  party  before  trial  —  Attorney  —  entitled  to  notice  — 
Oodt,  $  391.1  Where  a  pnrty,  required  to  attend  before  a  judge  or  referee  to 
be  examined  as  a  witness,  in  pursuance  of  section  391  of  the  Code,  lias  appeared 
in  the  action  by  an  attorney,  notice  of  the  examination  should  be  served  upon 
die  attorney  as  well  us  upon  the  party.  PI.UMMER  v.  BELDEN  ..............  4W 


670  INDEX. 


EXCEPTIONS  —  When  may  be  ordered  to  be  heard  in  the  first  instance  at  the 
Genera  i  Term 

See  BROWN  t>.  CONOEK 625 

EXCESSIVE  DAMAGES  —  Verdict  of  jury  — when  not  set  tiside,  because  of. 

See  PECK  e.  N.  Y.  CEN.  AND  HUD.  R.  R.  R.  Co 286 

EXCISE  —  Lice  ii*es — may  be  granted  for  less  than  a  year  — 1870,  chap.  175,  §  8. 

See  PEOPLE  t>.  GAINET 90 

EXCISE  LAW  —  Prosecution  by  third  person  for  violation  of—  Discontinu- 
ance of  action  by  overseer  of  the  poor  —  not  allowed —  Costs  —  chap.  820  of  1878. 

See  RECORD  r.  MESSENGER. 283 

EXECUTION  —  Bankruptcy.]  1.  It  is  no  excuse  to  sheriff  for  not  proceeding 
on  an  execution  in  his  hands,  after  levy,  that  proceedings  in  bankruptcy  were 
afterwards  instituted  against  the  judgment  debtor,  pending  which  the  sheriff 
was  enjoined  from  further  proceedings  on  the  execution. 

ANSONIA  BRASS  AND  COPPER  Co.  v.  BABBITT 157 

2.  Exemption  law  —  Laws  of  1859,  c/tap.  134  —  duty  of  debtor,  to  dawn 

exemption  within  reasonable  time.]  In  the  latter  part  of  February,  1874,  the 
defendant,  a  deputy  sheriff,  seized  a  wagon  belonging  to  the  plaintiff 
under  an  execution  issued  against  him,  and  advertised  the  same  to  be 
sold  on  March  tenth,  but  subsequently,  at  the  request  of  the  plaintiff, 
the  sale  was  postponed.  At  the  time  of  the  levy  the  plaintiff  owned 
three  or  four  other  wagons,  all  of  which  were  subsequently,  and  prior  to 
April  fourteenth,  disposed  of  by  him.  On  the  latter  day  the  defendant  took 
possession  of  the  wagon  and  sold  it,  against  the  objections  of  the  plaintiff, 
who  claimed  that  it  was  exempt  under  chapter  134  of  1859.  In  an  action 
to  recover  for  its  conversion,  held,  that  the  plaintiff  was  bound  to  make  his 
election  within  a  reasonable  time,  and  to  notify  the  officer  that  lie  claimed 
the  property  as  exempt,  and  that  the  question  whether  or  not  he  had  made 
his  election  within  a  reasonable  time  should,  under  the  circumstances  of  this 
case,  have  been  submitted  to  the  jury.  BROOKS  v.  HATHAWAY 290 

Levy  under  —  Receiptor — has  a  lien  for  his  fees. 

See  ALIGER  v.  KEELER 125 

Failure  of  sheriff  to  return  —  action  upon  sheriff's  bond  —  when  permitted 

—  8  R.  8.,  %  3,  title  5,  chap.  8  —  construction  of — permissive  —  not  mandatory. 

See  PEOPLE  T.  CONNER 533 

EXECUTORS  —  Notice  to  creditors,  to  present  claims — notice,  when  sufficient — 
2  R.  S.,  88,  §i  34,  38.]  The  defendants,  executors,  in  pursuance  of  2  Revised 
Statutes,  88,  section  34,  published  a  notice  to  creditors  to  present  their  claims, 
the  notice  being  in  the  usual  form  except  that  the  word  "requested"  was 
used  instead  of  "required."  Held,  that  there  was  no  substantial  difference 
between  the  words  "request"  and  "require"  as  the  latter  was  used  in  the 
statute,  and  that  the  notice  was  sufficient.  PRENTICE  v.  WHITNEY 300 

EXEMPLARY  DAMAGES  —  Recoverable  under  chap  646,  Laws  of  1878  — 
for  injuries  canted  by  sale  of  intoxicating  liquors. 

See  FRANKLIN  v.  SCHERMERHORN 112 

EXEMPTION  LAW—  Chop.  184,  Laws  of  1859  —  duty  of  debtor,  to  claim 
exemption  within  reasonable  time. 

See  BROOKS  ».  HATHAWAY 200 

EXPRESS  COMPANY—  Receipt  of — signature  to — proof  of. 

See  ARMSTRONG  t>.  FARGO 175 

EXPULSION  —  Of  member  of  a  corporation  —  improper  conduct — appeal  to 
oourt  to  determine  right  to  membership  is  not. 

See  PEOPLE  KX  REL.  ELLIOTT  «.  N.  Y.  COTTON  EXCHANGE 816 


INDEX.  671 


EXTENSION — Qf  time  to  pay  a  mortgage — agreement  for,  made  tetween 
holder  and  grantee  covenanting  to  assume,  made  without  consent  of  grantor  (mort- 
gagor), discharges  mortgagor. 

See  CALVO  v.  DAVIES 388 

FACT —  Resumption  of,  to  sustain  referee's  report.]  When  the  uncon- 
tradicted  evidence  establishes  the  existence  of  a  fact,  essential  to  the  plain- 
tiff's right  to  recover,  it  will  be  presumed,  in  support  of  a  judgment  in  his 
favor,  that  such  fact  was  found  by  the  referee,  though  not  so  stated  in  his 
report.  BANCKER  v.  MAYOR 409 

FALSE  IMPRISONMENT  —  Action  for,  against  judge  —  when  not  main- 
tainiwle —  although  sentence  is  unauthorized. 

See  LANGE  v.  BENEDICT 362 

FARE  —  Erie  Railway  Co.  —  no  obligation  to  keep  open  its  ticket  offices  —  Pay~ 
ment  of  fare  at  office  or  to  conductor  —  different  rates  of. 

See  BORDEAUX  v.  ERIE  RAILWAY  Co 579 

FEE  —  To  center  of  street  —  when  it  passes  with  grant  of  lot  on  street. 

See  MOTT  v.  MOTT 474 

FEES  —  Of  officers  in  criminal  proceedings  —  under  chap.  495  of  1847. 

See  PEOPLE  EX  BEL.  VAN  TASSEL  v.  SUPERVISORS 275 

Of  physician,  for  examination  as  to  pregnancy  of  widow,  under  order  «f 

Supreme  Court,  and  charged  thereby  on  estate,  not  affected  by  discontinuance  of 
action  —  surrogate's  order. 

See  ROLLWAGEN  v.  POWELL 210 

1. Of  auctioneers  —  on  foreclosure  sale.  ]    Not  allowable  to  an  auctioneer, 

for  services  rendered  upon  the  adjournment  of  a  sale  by  a  referee  in  fore- 
closure. 

See  WARD  v.  JAMES 526 

2.  Referees  —  on  foreclosure  sale."]    A  referee  is  only  entitled  to  receive 

the  same  fees  for  selling  real  estate,  as  by  law  is  allowed  to  a  sheriff. 

See  WARD  v.  JAMES 52<5 

FIRST  DEPARTMENT  —  Practice  in  —  Motion  to  confirm  referee's  reportt 
made  under  interlocutory  decree  —  Special  Terms  —  at  which  heard. 

See  EMPIRE  B.  AND  M.  L.  ABS'N  v.  STEVENS 516 

FORECLOSURE  —  Stay  of  proceedings  —  adjournment. ]  1.  Where,  after  a 
referee  has  been  appointed  to  sell  real  estate,  in  pursuance  of  a  judgment  of 
foreclosure,  and  a  notice  of  sale  has  been  duly  published,  the  defendant 
serves  an  undertaldng  to  stay  proceedings  upon  appeal,  in  pursuance  of 
section  341  of  the  Code,  the  plaintiff  is  not  required  to  abandon  the  pro- 
ceedings instituted  by  him,  but  may  adjourn  the  sale  until  it  can  be  deter- 
mined whether  or  not  the  sureties  will  justify.  WARD  o.  JAMES 524 

2. Auctioneer's  fees.]    No  fees  can  be  allowed  to  an  auctioneer  for  ser- 
vices rendered  upon  the  adjournment  of  a  sale  by  a  referee.    Id. 

3. Referee's  feet.]    A  referee  is  only  entitled  to  receive  the  same  fees 

for  selling  real  estate,  as  by  law  is  allowed  to  a  sheriff.     Id. 

Collection   of  a  note  of  a  married  woman,   the  payment   of  which  u 

charged  on  her  separate  estate —  by  foreclosure  instead  of  by  suit  at  law  —  not 
allowable. 

See  ANDREWS  v.  MONILAWS. 66 

Qf  mortgage  —  defense,   usury  and  fraud — action  equitable  —  trial  of 

intuet  by  the  court  —  discretionary. 

See  KNICKERBOCKER  LIFE  INS.  Co.  t>.  NELSON SI 

— —  Judgment  roll  in  —  against  grantor  —  of  mortgage  assumed  by  grantee— 
right  of  grantor  —  evidence  against  grantee,  although  not  notified  of  action. 

See  COMBTOCK  v.  DKOH AN 871 


672  INDEX. 

FORECLOSURE  —  Continued.  r  A.. 

Resale  of  property,  "  difference  and  eottt  and  expense*  of  retale  "  ntbte- 

yuent  toot*  inducted  in. 

See  RUHE  v.  LAW 25 

Inquest  —  Rule  86  —  doet  not  apply  to  equity  cotes. 

See  DEVLIN  «.  SHANNON 581 

Fraudulent  mortgage  —  Action  to  recover  damage*  against  fraudulent  pur- 
chaser at  salt. 

See  DUSENBURY  v.  CALLAGHAN 641 

Of  mechanic*?  lien  — failure  to  serve  —  bill  of  particulars  in  —  waived  by 

tertice  of  answer. 

See  NORCOTT  v.  FIRST  BAPTIST  CHURCH  OF  ROME 689 

FOREIGN  JUDGMENT — Injunction — It  is  within  the  power  of  the 
Supreme  Court  of  this  State  to  enjoin  a  party  from  enforcing  the  collection  of  a 
judgment  recovered  by  him  in  another  State. 

See  BARRY  ».  BRUNE 395 

FOREIGN  LAW  —  Laws  of  another  State  — promissory  note  — patent  right  — 
tale  of,  consideration  for — statute  of  Pennsylvania  —  knowledge  of  existence 
of —  a  question  of  fact,  not  of  lair. 

See  PALMER  v.  MINAR 843 

FORT  EDWARD  —  Village  of— Town  bonds— Chap.  953  of  1867  —  chap. 
317  of  1868.]  1.  Chapter  953  of  1867,  as  amended  by  chapter  817  of  1868, 
authorizing  the  village  of  Fort  Edward  to  issue  bonds,  requires  that  notice 
of  the  special  election,  provided  for  in  said  acts,  should  be  published  for  at 
least  two  weeks  previous  to  the  time  appointed  for  such  election. 

CULVER  t.  VILLAGE  OF  FORT  EDWARD 340 

2. •  Majority  of  taxable  inhabitants — tote  of —  what  constitutes.]    No  bonds 

can  be  issued  under  the  provisions  of  said  acts,  unless  a  majority  of  all  the 
taxable  inhabitants  of  the  village  shall  vote  so  to  do.  The  consent  of  a 
majority  of  all  those  who  attend  the  meeting  is  not  sufficient.  Id. 

FORGERY — Prisoner's  belief  in  his  authority  to  sign  paper."]  1.  Where  a  per- 
son is  indicted  for  affixing  the  name  of  another  person  to  a  written  instrument 
•without  authority,  he  is  entitled  to  an  acquittal  if  it  appear  that  he  had  fair 
grounds  for  believing  that  he  had  such  authority,  even  though  in  fact  he  had 
not.  PARMELEE  v.  PEOPLE  623 

2. Cross-examination.']  Upon  the  trial  of  the  plaintiff  in  error  for  forging 

his  father's  name  to  a  note,  the  father  testified  that  some  time  before  the  son 
had  applied  for  leave  to  use  his  name ;  that  he  had  refused  to  allow  him  to  do 
so ;  that  he  might  have  given  him  encouragement,  but  did  not  intend  to  author- 
ize him  to  use  his  name;  that  he  could  not  state  the  conversation.  Upon 
his  cross-examination  the  counsel  for  the  prisoner  asked  him  if  he  was 
willing  to  swear  that,  from  what  he  did  say,  the  prisoner  had  no  right  to 
infer  that  he  intended  to  give  him  authority  to  use  his  name,  which  question 
was  excluded.  Held,  that  this  was  error;  that  the  question  was  proper  to 
test  the  degree  of  confidence  the  witness  had  in  the  accuracy  of  his 
memory.  Id. 

3. Forged  note  —  name  of  fictitious  person.]    It  is  not  necessary,  in  order 

to  constitute  the  crime  of  forgery,  that  the  name  alleged  to  be  forged 
should  be  that  of  any  person  in  existence  ;  it  may  be  the  name  of  a  purely 
fictitious  person.  BROWN  «.  PEOPLE 562 

4.  Evidence  of  payment  of,  immaterial.]  Upon  the  trial  of  an  indict- 
ment for  uttering  a  forged  promissory  note,  evidence  tending  to  show  that 
tLe  note  had  been  paid  is  immaterial,  and  is  properly  excluded.  Id. 

5. Evidence  of  prior  arrest  of  prisoner.  ]     Upoo  an  indictment  for  forgery 

the  prisoner,  on  his  examination  in  his  own  behalf,  was  asked,  with  a  view  of 
anpeaching  his  character,  "How  many  times  have  you  been  arrested  ?'* 
Held,  that  the  question  was  improper,  as  the  mere  fact  of  his  arrest  had  no 
tendency  to  impeach  his  character  in  any  particular.  Id. 


INDEX.  673 

FORGERY—  Continued.  PAM 

6- Objection  to  question  tending  to  degrade  —  may  be  taken  by  counsel  when 

witness  is  a  party.]  JSembk,  that  although  the  right  of  a  witness  to  object  to 
answering  any  question,  on  the  ground  that  it  will  tend  to  disgrace  and 
degrade  him,  is  a  personal  privilege  which  must  be  claimed  by  the  witness, 
yet  that  the  rule  is  different  in  the  case  of  a  party  examined  as  a  witness,  and 
that  in  this  case  the  objection  may  be  taken  by  his  counsel,  whose  duty  it 
is  to  protect  his  rights  and  interpose  objections  in  his  interests  growing  out 
of  any  incident  in  the  litigation.  Id. 

FRAUD  —  Concealment  of  bankrupt  condition.]  1.  Although  a  banker  or  trader 
in  embarrassed  circumstances,  who  is  struggling  in  good  faith  to  retrieve  his 
fortunes,  is  not  compelled  to  disclose  the  fact  of  his  embarrassment  to  per- 
sons dealing  with  him  ;  yet,  if  he  is  at  the  time  hopelessly  insolvent,  he  is 
guilty  of  a  fraud,  if,  by  virtue  of  his  supposed  solvency  and  well  established 
credit,  he  contracts  obligations  which  he  cannot  reasonably  expect  to  pay. 

ROEBLING  v.  DUNCAN 50£ 

2.  Although  no  representation  is  made.]    Persons  dealing  with  a  banker 

in  good  faith,  and  in  reliance  upon  his  apparent  solvency,  will  be  protected 
against  the  consequences  of  the  concealment  by  the  banker  of  his  real  con- 
dition, if  he  is  at  the  lime  not  merely  insolvent  but  bankrupt,  and  where  such 
concealment  involves  a  degree  of  bad  faith  from  which  the  law  will  imply 
fraud,  although  no  actual  representation  has  been  made.  Id. 

Issue  of —  trial  of,  by  the  court  in  action  for  foreclosure  of  a  mechanic's 

litn,  discretionary. 

See  TISDALE  v.  MOORE 10 

Foreclosure  of  mortgage  —  action  to  recover  damages   against  fraudu- 


lent  purchaser  at  sale  —  Release  by  plaintiff  of  all  interest  in  property  to 
person  acquiring  title  from  such  purchaser  —  no  defense  to  action  —  Payment  — 
when  third  person  relieved  from  liability  by —  Covenants  of  seizin  and  warranty 
— breach  of. 

See  DUSENBURY  ».  CALLAGHAN 541 

FRAUDULENT  REPRESENT  ATIONS  —  Promissory  notes— obtained  by 
—  Measure  of  damages  where  notes  are  not  transferred  befort  maturity.]  1 .  Upon 
the  trial  of  an  action  brought  by  the  plaintiff  to  recover  damages  for  fraud- 
ulent representations,  by  means  of  which  he  was  induced  to  deliver  to  the 
defendant  his  three  promissory  notes,  each  for  $500,  with  interest,  it  appeared 
that  all  the  notes  were  still  in  the  possession  of  the  defendant,  and  that  one  of 
them  was  then  overdue.  The  court  charged  that  the  plaintiff  was  entitled 
to  recover  the  face  of  the  notes,  with  interest.  Upon  appeal  from  a  judg- 
ment in  favor  of  the  plaintiff,  held,  that  this  was  error  ;  that  the  verdict  of 
the  jury  established  the  invalidity  of  the  notes  in  the  hands  of  the  defendant; 
and  that  as  to  the  note  then  overdue,  the  plaintiff  was  only  entitled  to  nominal 
damages;  that  he  was  entitled  to  recover  the  face  of  the  other  two,  with 
interest,  as  they  might  be  transferred  before  maturity  to  bona  fide  purchasers 
in  good  faith.  Held,  further,  that  if  the  defendant  had  canceled  or  sur- 
rendered the  other  notes  at  the  trial,  plaintiff  could  only  have  recovered 
nominal  damages  for  them  also.  THATER  v.  MANLEY 680 

2.  Made  to  the  agent  of  one  firm  —  when  acted  upon  by  another  firm,  by 

whom  such  agent  is  aftei-ward  employed-liability  for.]  The  firm  of  Lynde  Bros., 
in  order  to  induce  a  firm  in  Buffalo  to  sell  them  goods,  made  certain  false 
and  fraudulent  representations  as  to  their  financial  condition  to  Kobinson, 
the  salesman  of  the  Buffalo  firm.  Subsequently  the  plaintiffs  succeeded  to 
the  business  of  said  Buffalo  firm,  and  retained  Robinson  in  their  employ- 
ment. Shortly  after  Lynde  Bros,  applied  for  other  goods,  which  were  sold 
to  them  by  Robinson,  he  relying  upon  the  representation  previously  made  by 
them.  In  an  action  by  the  plaintiffs  to  recover  the  goods  so  sold,  on  the 
ground  that  they  were  procured  through  fraudulent  representations,  held, 
that  they  were  not  entitled  to  recover  ;  that,  in  order  to  maintain  such  action, 
the  representations  must  be  made  to  the  vendors,  or  to  some  person  acting  in 
their  behalf,  while  in  this  case  the  representations  were  made  to  the  agent 
of  another  firm,  and  before  that  of  the  plaintiffs  came  into  existence. 

HILL  v.  CARLEY 686 

HTTN— VOL.  VIII.         85 


674  INDEX. 


FREEHOLDER  —  Tit  If  to  real  <state.}  1.  One  who  has  a  title  to  real  estate 
is  a  freeholder,  irrespective  ol°  the  amount  or  value  of  his  interest  therein. 

PEOPLE  EX  REL.  8HAW  r.  SCOTT  .....................................  564 

2.  -  Inheritance  subject  to  power  of  sale.]  A  testator,  by  his  will,  directed 
the  sale  of  certain  real  estate,  and  the  distribution  of  the  proceeds  among  the 
children  of  his  present  wife,  the  will  naming  no  executor  and  containing  no 
power  of  sale.  Held,  that  the  title  to  the  real  estate  vested,  upon  his  death, 
in  his  heirs  at  law,  and  that  a  child  by  a  former  wife  was,  until  a  sale  should 
be  made  in  pursuance  of  the  will,  a  freeholder,  and,  as  such,  authorized  to 
sign  a  certificate  as  to  the  necessity  and  propriety  of  opening  a  highway.  Id 

FREIGHT  —  Demurrage  —  Counter-claim  —  Charter-party. 

See  ELWELL  v.  SKIDDY  ......  ...   ................................     78 

GARDEN  —  Meaning  of  —Highway—  land  taken  for—IB.  8.,  574,  §  57. 

See  PEOPLE  EX  REL.  STANTON  v.  HORTON  ........................     357 

GAMBLER.  —  Indictment  of,  sufficiency  of  averments  in  —  chapter  504  of 
1851  —  chapter  214  of  1855.]  1.  An  indictment,  charging  that  the  defend- 
ant "did  willfully,  unlawfully  and  knowingly  sell,  vend  and  cause  to  be  sold 
and  vended  what  are  commonly  known  ana  called  lottery  policies,  the  partic- 
ulars whereof  are  unknown  to  the  jurors  aforesaid,  and  did  then  and  there 
sell  and  vend  divers  of  such  lottery  policies  to  divers  persons  to  the  jurors 
aforesaid  unknown,  "  held,  sufficient  ;  that  only  reasonable  certainty  is  required  ; 
that  the  facts  stated  to  be  unknown  were  only  matters  of  description  and 
not  necessary  to  the  accusation,  and  there  was  no  danger  of  the  defendant 
being  tried  thereunder  for  an  offense  for  which  he  was  not  indicted  ;  or,  being 
convicted,  any  difficulty  in  pleading  the  conviction  and  judgment  in  bar  of 
another  prosecution  for  the  same  offense.  PICKETT  v.  PEOPLE  ...........  83 

2.  -  Conviction,  when  not  to  be  set  aside.'}  Further,  that  although  the 
proofs  might  not  be  very  strong,  yet,  where  the  jury  have  found  the  facts, 
and  as  found  they  are  sufficient  to  sustain  the  conviction  it  will  not  be  set 
aside.  Id. 

GARNISHMENT  —  Process  of—  effect  of,  on  rights  of  bona  Jide  purchaser  of 
a  promissory  note. 

See  SIMON  v.  HUOT  ..............................................  878 

GENERAL  ASSIGNMENT  —  Chap.  348  of  1860,  §  3  —failure  to  file  bond.  ] 
1.  The  omission  of  an  assignee  for  the  benefit  of  creditors  to  file  the  bond 
required  by  section  3  of  chapter  348  of  1860,  does  not  —  certainly  until  the 
inventory  is  filed  —  per  se  invalidate  the  assignment.  VON  HEIN  0.  ELKUS.  .  516 

2.  -  Assignment  without  preference  —  bankruptcy  act.]  The  right  to  make 
a  general  assignment  for  the  benefit  of  creditors  is  not  suspended  by  the  provi- 
sions of  the  bankrupt  act,  provided  such  assignment  contains  no  preferences 
and  is  not  made  with  intent  to  defraud  the  creditors  of  the  assignors.  Id. 

GENERAL  TERM  —  Practice  —  when  exceptions  may  be  ordered  to  be  heard 
in  the  first  instance  at  the  General  Term. 

See  BROWN  v.  CONGER  ..........................................  625 

GRANT  —  Cf  use  of  water  —  amount  not  defined  —  easement  limited  to  amount 
first  taken. 

See  ONTHANK  v.  LAKE  SHORE  AND  M.  S.  R  R  Co  .................  181 

GRANTOR  —  Right  of  —  Assumption  of  mortgage  by  grantee  —  Judgment  roll 
in  foreclosure  against  grantor  —  evidence  against  grantee  •,  although  not  notified 
of  action. 

See  COMSTOCK  t>.  DROHAN  .......................................  873 

GRANTOR  AND  GRANTEE  —  Mortgage  —  covenant  in  deed,  assuming  — 
enures  to  benefit  of  mortgagee  —  Distinction  between  such  covenant,  when  made  by 
grantee  and  mortgagee. 

See  CAMPBELL  t>.  SMITH  .........................................      6 

-  Party  wall  —  covenant  by  grantee  to  assume  agreement  as  to  —  similar  in 
principle  to  assumption  of  mortgage. 

See  STEWART  t>.  AUJRICH  .  .  ..............  841 


INDEX.  675 

P1.BB 

GRANTEE  —  Assuming  mortgage— may  be  released  by  his  grantor  —  Assent 
of  mortgagee,  not  necessary.]  1.  John  Hoffman  executed  a  mortgage  to  the 
plaintiff;  afterward  he  conveyed  the  premises  covered  by  the  mortgage  to 
the  defendant  Casbacker,  subject  to  such  mortgage,  which  Casbacker  assumed 
to  pay.  Casbacker  entered  under  his  deed  and  made  payments  on  the  mort- 
gage, to  the  plaintiff.  Afterward,  Hoffman  requested  Casbacker,  in  writing, 
to  convey  the  premises  to  his  brother  Lewis,  and  in  consideration  thereof 
executed  a  release,  under  seal,  to  Casbacker,  of  all  obligations  assumed  by 
Casbacker  under  the  deed  from  him.  In  an  action  by  the  plaintiff  against 
Casbacker.  to  recover  the  amount  due  on  the  mortgage",  field,  that  the  release 
by  Hoffman  to  Casbacker  operated  as  a  discharge  from  all  obligations  assumed 
under  the  deed  to  him.  STEPHENS  c.  CASBACKER lie 

2.  Assumption  of  mortgage  by  —  liable  to  pay,  although  her  grantor  was 

not—  Coverture  no  defense.]  A.  executed  a  mortgage  on  certain  premises  to 
B.,  and  afterward  sold  and  conveyed  them  to  C.,  and  by  various  mesne  con- 
veyances they  came  to  T.,  a  married  woman.  In  none  of  the  conveyances 
except  the  one  to  T.  was  there  any  covenant  by  the  grantee  to  pay  said  mort- 
gage. Held,  that  T.  was  liable  on  her  covenant.  Further,  that  her  coverture 
was  no  defense  to  the  action,  as  the  liability  was  contracted  upon  the  pur- 
chase of  real  estate  in  her  own  name,  and  which  thus  became  her  separate 
estate,  and  her  covenant  was  a  contract  to  pay  a  portion  of  the  purchase 
money,  and  was,  therefore,  for  the  benefit  of  her  separate  estate. 

VROOMAN  v.  TURNER 78 

Assumption  of  mortgage  by  —  Right  of  grantor  —  Judgment  rott  in  fore- 
closure against  grantor — evidence  against  grantee,  although  not  notified  of  action. 

See  COMSTOCK  v.  DROHAN 378 

GUARDIAN  —  Special,  to  seU  infant's  estate  —  owner  of  tax  title  to  same  — can- 
not dispose  of  his  incumbrance  upon  the  estate,  although  it  was  acquired  previous 
to  such  appointment. 

See  SPELMAN  v.  TERRY 205 

GUARDIAN  AD  LITEM  —  Effect  on  judgment  against  infant,  of  his  failure 
to  plead  infancy  in  action  against. 

See  PHILLIPS  v.  DUSRNBERRY 848 

GUARANTEE  —  Continuing.]  Where  a  lease  was  guaranteed,  and  had  a 
provision  in  these  words:  "  This  contract  is  to  be  renewed  for  three  consec- 
utive years,  if  it  is  fulfilled  to  the  satisfaction  of  both  parties,"  held,  that 
the  guarantee  was  continuing  and  the  guarantor  liable  for  the  second  year's 
rent  in  default.  DECKEK  e.  QAYLORD : 110 

HIGHEST  TRIBUNAL  —  Decision  of —  acts  done  under — protection  against 
penalty  or  forfeiture  therefor]  The  Binghamton  Bridge  Company  having, 
in  1855,  erected  a  bridge  over  the  Chenango  river,  at  Binghamton,  within 
eighty  rods  of  plaintiff's  bridge,  the  plaintiff  in  1856  commenced  an  action 
to  enjoin  it  from  collecting  toll  thereon,  on  the  ground  that,  by  its  charter, 
no  bridge  could  be  erected  vvithin  two  miles  of  the  one  previously  erected  by 
it.  The  plaintiff  was  defeated  at  the  Circuit,  and  the  judgment  affirmed  at 
the  General  Term  and  by  the  Court  of  Appeals,  but  subsequently  reversed  by 
the  Supreme  Court  of  the  United  States. 

In  1865  the  Binghamton  Bridge  Company's  bridge  being  carried  away 
by^  a  freshet,  struck  and  carried  away  plaintiff's  bridge.  Plaintiff  brought 
this  action  to  recover  the  tolls  unlawfully  diverted  from  it  by  the  other 
bridge,  and  damages  arising  from  its  bridge  being  carried  away.  Defendant 
maintained  that  our  courts  having  sustained  the  validity  of  the  statute  incor- 
porating the  Binghamton  Bridge  Company,  defendants'  testator  was  pro- 
tected by  2  Revised  Statutes,  602,  although  the  decision  of  our  courts  had 
since  been  overruled. 

Held,  that  this  was  not  so  for  the  reason :  first,  that  the  bridge  was  not 
built  after  any  decision  of  our  courts  had  given  a  construction  to  the  act ; 
and,  second,  that  the  recovery  of  damages  by  reason  of  the  loss  of  toll  was 
not  a  penalty  or  forfeiture. 

Held,  further,  that  the  principle  laid  down  in  Harris  v.  Jex  (55  N.  Y.,  421). 
that  a  person  had  a  right  to  rely  upon  the  decision  of  the  highest  tribunal 


676  INDEX. 

HIGHEST  TRIBUNAL  —  Continued. 

of  the  land  upon  any  question,  and  was  not  bound  to  foresee  that  it  would  be 
reversed,  was  not  applicable,  as  the  decision  of  the  Court  of  Appeals  was  not 
the  decision  of  the  highest  tribunal  of  the  land,  upon  the  matter  involved. 

CHENANGO  BRIDGE  Co.  v.  PAIGE 299 

HIGHWAY—  Land  taken  for— garden  —  meaning  of—  1  R.  &,  574,  §  57. 

See  PEOPLE  EX  REL.  Sr ANTON  v.  HOKTON 357 

Opening  of —  w?u>  is  a  freeholder  for  purposes  of. 

See  PEOPLE  EX  REL.  SHAW  «.  SCOTT 566 

See  PUBLIC  HIGHWAY. 

HORSE  RAILROAD  —  Biding  on  platform  of  street  car  — proximate  cause 
of  death  —  when  not  negligence. 

See  GINNA  v.  SECOND  AVE.  R.  R.  Co 494 

HUDSON  —  Common  council  of — power  to  audit  claims  —  Chap.  495  of 
1847—  |  97  —  chap.  468,  of  1872. 

See  PEOPLE  EX  REL.  VAN  TASSEL  v.  SUPERVISORS 275 

HUSBAND  AND  WIFE  —  Contracts  between  —  validity  of.]  1.  A  wife 
having  commenced  an  action  against  her  husband  for  divorce  on  account  of 
his  adultery,  entered  into  an  agreement  in  writing  with  him,  whereby,  in  con- 
sideration of  a  sum  of  money  to  be  paid  to  her  by  him,  she  agreed  to  discon- 
tinue the  action,  to  condone  the  adultery,  to  give  up  to  him  the  custody  of 
their  child  and  relinquish  her  right  of  dower  in  his  estate.  In  an  action 
brought  by  her  upon  such  agreement,  held  that  a  wife  has  no  power  to  enter 
into  such  a  contract  with  her  husband,  and  that  the  agreement  to  pay  the 
money  was  void.  VAN  ORDER  v.  VAN  ORDER 315 

2. Condonation  of  adultery.]     A  promise  by  a  husband  to  pay  money 

to  his  wife,  in  consideration  of  her  condoning  an  act  of  adultery  committed 
by  him,  is  in  violation  of  the  rules  of  law  and  public  policy  and  will  not  be 
enforced  by  the  courts.  Id. 

IGNORANCE  —  Of  contents  of  receipt  by  receiptor —  acts  of  receiptor  incon- 
sistent with  knowledge  thereof —  evidence  of  inadmissible. 

See  DREW  v.  MAYOR 443 

IMPEACHING  —  Character  of  witness  —  evidence  of  prior  arrest  —  inadmis- 
sible. 

See  BROWN  v.  PEOPLE 562 

IMPRISONMENT  —  Discharge  from  —  meaning  of '  'just  and  fair  "  —  what 
must  be  shown  to  prevent  discharge  —  2  R.  8.,  chap.  5,  title  1,  article  6. 

See  MATTER  OP  BRADY 437 

Action  for,  against  judge  —  when  not  maintainable,  although  sentence  is 

unauthorized. 

See  LANGE  ».  BENEDICT 862 

INDICTMENT  —  For  marrying  a  married  person  —  sufficiency  of  allegations 
as  to  prior  marriage — 2  R.  8.  (Edm.  ed.),  710,  §  11.1  The  plaintiff  in  error, 
an  unmarried  woman,  was  convicted  under  2  Revised  Statutes  (Edm.  ed.),  710, 
section  11,  of  unlawfully  marrying  one  Simons,  he  being  then  a  married  man. 
The  indictment  alleged  the  marriage,  and  further, "  she,  *  *  *  at  the  time 
of  marrying  *  *  *  the  said  Conrad  L.  Simons,  well  knowing  that  the 
said- Conrad  L.  Simons  was  then  and  there  the  lawful  husband  of  Anna 
M.  Simons,  and  had  previously  been  lawfully  married  to  the  said  Anna  M. 
Simons."  It  contained  no  other  allegation  as  to  the  marriage  of  Conrad  L. 
and  Anna  M.  Simons.  Held,  that  the  indictment  was  fatally  defective,  in 
that  it  did  not  sufficiently  allege  the  marriage  of  the  said  Conrad  L.  and 
Anna  M.  Simons.  SAUBER  v.  PEOPLE 802 

Of  gambler —  sufficiency  of  averments  in. 

See  PICKETT  v.  PEOPLE 83 

For  rape  —  conviction  of  assault  with  intent  to  commit — error  in  charge 

tf  judge  as  to  what  necessary  to  justify  conviction  of  rape — held  no  ground  for 
reversal  <>/  judgment. 

See  MYER  v.  PEOPLE..  688 


INDEX.  677 


INDORSEMENT  —  Of  note  — liability  on,  may  be  limited  by  the  terms  of  tit 
delivery  —  when. 

See  LATTIMER  t>.  HILL 171 

INFANT  —  Judgment  against— effect  of—  Guardian  ad  litem  —  neglect  of,  to 
plead  infancy.'}  1.  A  judgment  rendered  against  an  infant  who  is  duly  sum- 
moned and  has  a  guardian  ad  litein  appointed,  who  accepts  the  trust,  will 
bind  and  conclude  him  as  if  he  were  an  adult.  PHILLIPS  v.  DUSENBERRY.  .  348 

2.  ;  Six  months  after  coming  of  age  to  show  cause.]    The  practice  of  giving 

minors  six  months  after  coming  of  age  to  show  cause  against  decrees  rend- 
ered against  them  during  their  minority,  applied  only  to  actions  in  equity, 
and  not  to  actions  at  law  for  the  recovery  of  money  due  on  contract,  and 
this  rule  is  now  abrogated  by  statute,  providing  for  the  appointment  of 
guardians  ad  litem.  Id. 

— —Special  guardian  —  owner  of  tax  title  to  estate  —  cannot  sell  his  interest 
therein  after  his  appointment  as  special  guardian. 

See  SPELMAN  v.  TERRY 206 

INHERITANCE  —  Subject  to  power  of  sale,  title  in  heirs  at  law  until  sale. 

See  PEOPLE  EX  REL.  SHAW  «.  SCOTT 568 

INJUNCTION  —  damages  caused  by  —  what  allowable  as  —  Bad  management  of 
receiver.]  1.  In  proceedings  to  ascertain  the  damage  resulting  from  the  grant- 
ing of  an  injunction,  damages  directly  caused  by  the  act  of  divesting  the 
enjoined  party  of  his  property  and  putting  it  in  the  hands  of  a  receiver  are 
allowable,  but  uot  such  as  flow  from  the  bad  management  of  the  receiver 
afterwards.  HOTCHKISS  v.  PLATT 46 

2.  Counsel  fe*.]    Counsel  fees  on  the  trial  of  the  action  in  which  the 

injunction  was  granted  are  not  allowable  as  damages,  without  evidence  that 
the  expense  of  the  trial  was  increased  by  the  injunction.  /-/. 

8.  Receiver's  compensation.]    An  allowance  made  by  the  court  to  the 

receiver  in  managing  the  property  is  not  allowable  as  damages,  when  the  sum 
BO  paid  is  no  greater  than  the  defendant,  who  did  not  manage  the  property 
before  the  receivership,  but  employed  another  person  to  do  it,  would  have 
paid  for  similar  services  if  no  receiver  had  been  appointed.  ItL 

4.  Injury  to  business.]    Any  loss  of  property  or  diminution  of  profits 

occurring  inconsequence  of  the  change  in  the  custody  and  control  of  defend- 
ant's goods  or  stoppage  of  defendant's  business  is  allowable.  Td. 

5. Restraining  city  from  confirming  an  assessment  —  no  defense  against 

contractor  entitled  to  his  pay  on  the  confirmation,  unless  diligence  it,  shown  to 
remove  it.]  Where  a  contract  with  the  city  of  New  York  for  paving  a  street 
provided  that  the  city  would  pay  in  cash,  on  the  confirmation  of  the  assess 
merit  to  be  laid  for  said  work,  the  whole  of  the  money  accruing  to  the 
other  party  under  the  agreement  ;  and  no  assessment  had  ever  been  laid 
for  the  work,  the  city  and  the  board  of  assessors  having  been  enjoined  by 
the  court  in  an  action  by  the  property  owners  from  confirming  the  assess- 
ment : 

Held,  in  an  action  to  recover  the  balance  due  on  the  contract,  that  when 
the  defendants  were  stopped  by  process  from  obtaining  the  funds,  all  they 
could  demand  was  a  reasonable  time  to  remove  the  impediment,  and  the  fail- 
xire  to  do  any  thing  to  remove  the  injunction  rendered  them  liable  for  the 
plaintiff's  claim  BOWERY  NAT.  BANK  v.  MAYOR 224 

6. That  it  was  error  for  the  judge  to  leave  it  to  the  jury  to  find  the 

fact  whether  or  not  the  assessment  had  not  been  confirmed  because  of  any 
collusion,  fraud,  negligence  or  other  improper  act  on  the  part  of  the  defend- 
ants, for  the  facts  being  undisputed,  the  question  of  reasonable  diligence  was 
one  for  the  court,  ana  especially  where  ite  subject-matter,  namely,  a  law- 
suit, was  one  of  which  the  court  could  take  judicial  cognizance  ;  and  the 
plaintiff  was  entitled  to  its  request  that  the  jury  be  instructed  to  render  a 
verdict  in  its  favor.  Id. 

7.  In  bankruptcy  —  effect  of.]    An  injunction  issued  in  proceedings  in 


678  INDEX 

INJUNCTION  —  Continued.  PAa» 

bankruptcy,  does  not  apply  to  property  levied  ov  V- 1  sNi.'f  r-bvre  the  levy 
has  been  made  before  the  commencement  of  proceedings  in  bankruptcy 
against  the  judgment  debtor.  The  possession  and  legal  titie  <jemg  in  the 
sheriff  for  the  purpose  of  satisfying  the  process  in  his  hands,  he  has  the  ifght 
to  go  on  and  sell  the  property,  being  accountable  only  for  the  surplus,  if  any, 
to  the  bankruptcy  court.  ANSONIA  BRASS  AND  COPPER  Co.  v.  BABBITT.  . . ". .  157 

Judgment  of  foreign  court — Supreme  Court  may  enjoin  a  party  front 

enforcing —  Insurance  policy  on  life  of  husband  for  wife's  benefit —  assignment 
through  coercion . 

tice  BARRY  n.  BRUNE 396 

INJURIES  —  To  servant  in  course  of  his  employment  —  liability  of  master  for. 

See  SPAN  v.  ELY.  . . .  i '. 255 

Resulting  from  improper  construction  of  building,  causing  snow  to  fall  on 

patters  by  —  liability  of  owner  for. 

See  WALSH  v.  MEAD 387 

To  traveler  from  obstruction  in  street  —  liability  of  party  causing. 

See  VILLAGE  OF  SENECA  FALLS  D.  ZALINSKI 57* 

INQUESTS  —  Rule  36 — Chancery  practice.]  1.  Rule  36,  authorizing 
inquests  to  be  taken  in  cases  in  which  no  sufficient  affidavit  of  merits  has  been 
made  and  served,  does  not  apply  to  actions  in  equity.  DEVLIN  «.  SHANNON,  «kv 

2.  Foreclosure  ]    In  an  action  to  foreclose  a  mortgage,  an  inquest  taken 

by  the  plaintiff  upon  defendant's  failure  to  file  an  affidavit  of  merits,  is 
irregular,  and  a  judgment  entered  thereon  will  be  set  aside.  Id. 

INQUISITION  —  Prima  facie  evidence  of  unsound  mind  —  Promissory  note 
made  by  lunatic  —  action  upon  —  burden  of  proof  in.]  This  action  was  brought 
by  the  plaintiffs  against  the  maker  of  a  promissory  note,  which  the}'  had  pur- 
chased, before  maturity,  in  good  faith,  and  for  full  value.  Upon  the  trial  the 
proceedings  upon  an  inquisition,  had  after  the  making  of  the  note  and  the 
commencement  of  this  action,  were  given  in  evidence,  by  which  the  defend- 
ant was  declared  to  be  of  unsound  mind  at  the  time  he  made  the  same. 
Held,  that  the  inquisition  established,  prima  facie,  the  insanity  of  the  defend- 
ant at  the  time  of  the  making  of  the  note,  and  that,  in  order  to  recover,  the 
plaintiffs  must  show  either  that  he  was  sane  at  that  time,  or  that  he  had 
received  such  a  consideration  for  the  note  as  that  justice  and  equity  required 
it  to  be  paid  out  of  his  estate.  HICKS  «.  MARSHALL ." 327 

INSPECTION  —  Of  goods  before  delivery  —  effect  of  on  warranty  —  penally. 

See  McPARLiN  v.  BOYNTON 449 

INSTALLMENTS  —  Payment  of,  under  contract  —  in  action  of  ejectmenf 
brought  for  non-payment — burden  of  proof  as  to  payments. 

See  EVERETT  v.  LOCKWOOD 354 

INSURANCE  —  On  life  of  husband  for  wife's  benefit  —  assignment  of,  by 
wife,  ihroughtcoercion  —  Trust — Judgment  of  foreign  court.]  1.  The  plaintiff, 
under  the  influence  and  coercion  of  her  husband,  assigned  to  the  defendant 
Brune  two  policies  of  insurance,  issued  to  her  on  the  life  of  her  husband,  to 
secure  a  debt  due  from  him  to  the  defendant.  The  latter,  fearing  that  the 
assignment  was  invalid  under  the  laws  of  this  State,  in  pursuance  of  an 
arrangement  with  the  company,  allowed  the  policies  to  be  forfeited  for  non- 
payment of  premiums,  and  received  new  policies  from  the  company  for  his 
benefit  as  a  creditor,  for  the  same  amounts,  bearing  the  same  numbers,  refer- 
ring to  the  same  register  in  the  company's  books,  and  for  the  same  premiums, 
except  that  the  latter  were  payable  seini-annually  instead  of  annually,  such 
policies  being  issued  upon  the  original  applications  and  without  a  new 
examination. 

Held,  that  the  new  policies  were  to  be  considered  as  renewals  of  the  old 
ones,  and  subject  to  a  trust  in  favor  of  the  plaintiff  the  same  as  was  impressed 
upon  the  original  ones.  BARRY  v.  BRUNE. 3M 

2. Enjoining  proceedings  being  taken  in  another  court.]  After  the  com- 
mencement of  this  tvction,  brought  to  restrain  the  company  from  paying  over 


INDEX.  079 

INSURANCE  —  Continued.  rjM. 

the  amount  of  the  policies  to  the  defendant  Brune,  and  to  compel  the  pay- 
ment thereof  to  the  plaintiff,  Brune  commenced  an  action  against  the  com- 
pany in  the  United  States  Circuit  Court,  in  Maryland,  upon  the  new  policies, 
and  recovered  judgment  for  the  amount  thereof.  Held  (1),  that  this  judg- 
ment was  impressed  with  the  same  trusts  in  favor  of  the  plaintiff  as  were 
the  policies;  (2),  that  it  only  decided  that  the  company  was  bound  to  pay  the 
money  to  the  defendant  in  pursuance  of  its  agreement  so  to  do,  and  that  it 
did  not  decide  that  he  would  be  entitled  to  hold  the  money  for  his  own  use, 
and  free  from  the  trust  existing  in  favor  of  the  plaintiff. 

Held,  further,  that  it  was  within  the  power  of  this  court  to  enjoin  the 
defendant  Brune  from  taking  any  proceedings  to  enforce  the  collection  of 
the  judgment  recovered  by  him  in  Maryland,  and  that  a  judgment  to  that 
effect  in  this  case  was  proper,  and  should  be  affirmed.  Id. 

INSURANCE  COMPANY— Ratification  by,  of  acts  of  agent. 

See  SHAFT  v.  PHCENIX  MUT.  LIFE  INS,  Co 638 

INTENTION  —  Party  to  transaction  cannot  testify  as  to  intention  with 
which  an  act  was  done  —  as  against  legal  representatives  of  other  party  —  Code, 
§  399. 

See  TOOLEY  t.  BACON 176 

INTERPLEADER  —  Code,  §  122  —  supplemental  complaint.  ]  1.  Where  upon 
the  application  of  the  defendant  an  order  is  made,  in  pursuance  of  section 
122  of  the  Code,  directing  that  he  pay  into  court  the  money,  to  recover  which 
the  action  is  brought,  and  that  a  third  person,  by  whom  the  same  is  claimed, 
be  substituted  as  defendant  in  his  place,  the  plaintiff  should  apply  for  leave 
to  serve  a  supplemental  complaint  setting  forth  such  additional  facts,  as  may 
be  necessary  to  show  that  he  has  a  right  to  recover  the  amount  claimed  as 
against  the  defendant.  WILSON  v.  LAWRENCE 598 

2.  Dismissal  of  complaint.']    If  the  plaintiff  fail  so  to  do,  and  proceed  to 

tri.-il  upon  the  original  complaint,  the  substituted  defendant  may  move  to 
dismiss  the  same,  on  the  ground  that  as  to  him  it  does  not  state  facts  sufficient 
to  constitute  a  cause  of  action.  Id. 

INTOXICATION  —  Intoxicating  liquors  —  furnished  by  bartender  without 
knowledge  of,  and  against  orders  of  employers — Liability  of  employers  —  chap- 
ter 646,  La.w.t  of  1873.]  The  supplying  of  liquor  to  a  party  who  is  injured 
afterwards,  by  reason  thereof,  although  done  by  the  bartender  without  the 
knowledge  or  authority  of  his  employers,  and  against  their  instructions, 
makes  the  employers  liable,  under  chapter  646  of  the  Laws  of  1878,  for  the 
injuries  sustained.  SMITH  n.  REYNOLDS US 

Civil  damage  act  —  chapter  648  of  1873  —  constitutional  —  What  damages 

recoverable  under  —  exemplary  damages. 

See  FRANKLIN  v.  SCHERMERHORN US 

IRREGULARITY — In  assessment  —  cured  by  legislative  act 

See  QUEST  v.  CITY  OF  BROOKLYN 97 

IRRELEVANT  MATTER  —  And  scandalous  matter —  responsibility  for 
insertion  of.  ]  The  responsibility  for  the  insertion  of  irrelevant  and  scandalous 
matter  in  pleadings  rests  upon  the  attorney  preparing  the  same,  and  he  should 
be  charged  with  the  payment  of  the  costs  of  a  motion  to  have  such  matter 
Btricken  therefrom.  Me  VET  v.  CANTRELL  and  TADDIKEN  v.  CAHTRHLL 588 

Striking  out  of —  discretionary  —  when  improper. 

See  TOWN  OF  ESSEX  v.  N.  Y.  AND  CANADA  R.  R.  Co 861 

ISSUES  —  Of  fraud  —  trial  of,  by  the  court,  in  an  action  for  the  foreclosure  of 
m  mortgage  —  discretionary. 

See  TISDALE  P.  MOORE I* 

JOINDER  —  Of  administrator  and  heirs  —  in  an  action  for  an  accounting  eo*- 
eerning  the  affairs  of  a  partnership — is  proper,  although  the  interests  of  the  several 
defendants  did  not  accrue  in  the  same  right. 

See  SKIDMORE  v.  COLLIKB * 


680  INDEX. 


JOINT  DEBTORS  —  Death  of  one,  during  pendency  of  action  —  revival  of 
jyairut  his  representatives.]  In  an  action  against  A.,  B.  and  <J.,  copartners, 
C.  died;  thereafter  judgment  by  default  was  entered  against  A.  and  B.  After- 
wards, on  motion,  the  administrator  of  0.  was  substituted  in  place  of  C.  as 
sole  party  defendant.  Held,  error;  that  in  such  case  the  action  against  the 
administrator  should  be  a  new  one,  arising  because  of  the  original  debt,  the 
death  of  one  joint  debtor,  the  appointment  of  his  representatives  and  the 
insolvency  of  the  surviving  joint  debtors,  and  not  a  continuance  of  the 
original  action  against  all  the  joint  debtors.  HASTEN  r.  BLACKWELL  .......  313 

JUDGE  —  Action  against,  for  unlawful  imprisonment  —  when  not  maintaina- 
ife,  although  sentence  is  unauthorized. 

See  LANGE  v.  BENEDICT  ........................................  363 

JUDGE'S  CHARGE  —  Rape.]  Upon  the  trial  of  the  plaintiff  in  error  for 
rape,  the  court  refused  to  charge  that  he  must  have  "  accomplished  his  purpose 
in  spite  of  the  utmost  reluctance  and  resistance  on  her  part."  The  prisoner 
was  convicted  of  an  assault  with  intent  to  commit  rape.  Upon  a  writ  of  error 
to  review  this  conviction,  held,  that  as  the  refusal  to  charge,  even  if  it  were 
error,  did  not  in  any  way  affect  the  crime  of  which  he  was  convicted,  but 
only  that  of  which  he  was  acquitted,  it  furnished  no  ground  to  reverse  the 
judgment.  MYER  v.  PEOPLE  .  ..........................................  538 

JUDGMENT  —  By  default  —  irregular  —  if  relief  taken  is  greater  than  that 
asked  for  in  complaint. 

See  ANDREWS  v.  MONILAWB  ......................................    66 

-  Sheriff's  certificate  of  sale  on  —  valid  against  prior  undisclosed  agreement 
^f  judgment  creditor. 

See  FROST  v.  YONKERS  SAVINGS  BANK  ............................    26 

Against  infant  —  effect  of  —  guardian  ad  litem  —  neglect  of,  to  plead 

See  PHILLIPS  v.  DTTSENBERRY  ...................  .................  348 

-  Against  municipal  corporation  —  bind*  party  causing  obstruction  to  streets, 
causing  injury  sued  for. 

See  VILLAGE  OP  SENECA  FALLS  «.  ZALINSKI  .  ......................  571 

JUDGMENT  ROLL  —  In  foreclosure  against  grantor  —  of  mortgage  assumed 
by  grantee  —  right  of  grantor  —  evidence  against  grantee,  although  not  notified  of 
the,  action. 

See  COMSTOCK  v.  DROHAN  ..........................   ...........  375 

JURISDICTION  —  Justice's  Court,  objections  as  to  regularity,  etc.,  taken  in  — 
duty  of  County  Court  to  pass  upon. 

v.  REED  .............................................  618 


JURISDICTION  AL  —  When  security  on  appeal  to  County  Court  is. 

See  KUNTZ  v.  LIGHT  .............................................     14 

JURY  —  Refusal  to  restate  evidence  to,  when  requested  by  them  —  error  —  Plead- 
ings beyond  portion  admitted  by  the  answer,  not  evidence  to  go  to  jury. 

See  DREW  v.  ANDREWS  ..................................  .......    23 

-  Verdict  of  —  for  excessive  damages  —  when  not  set  aside. 

See  PECK  v.  N.  Y.  CEN.  AND  HUD.  R  R  R  Co  ....................  286 

—  —  Verdict  of  —  there  must  be  rational  ground  for. 

See  McCAio  t>.  ERIE  RAILWAY  Co  .................................  599 

**  JUST  AND  PAIR"  —  Meaning  of,  under  §  8  of  2  R.  8.,  chap.  5,  tiOe  1, 
mart.  6  —  act  providing  for  the  discharge  of  imprisoned  debtors. 

See  MATTER  OF  BRADY  .........................................  487 

JUSTICE'S  COURT  —  Brooklyn  —  %  16,  chap.  102,  Laws  0/1850—  County 
Oourt  —  no  power,  on  motion,  to  vacate  judgment  of  Justice's  Court.}  1.  A  sum- 
mons having  been  issued  in  a  civil  action  by  a  justice  of  the  peace  of  the 
town  of  New  Lots.  Kings  county,  and  personally  served  on  the  defendant  in 
the  city  of  Brooklyn,  in  said  county,  of  which  he  was  a  resident,  and  on 


INDEX.  681 

JUSTICE'S  COURT  —  Continued.  PAM 

default  judgment  entered,  a  transcript  thereof  filed,  and  the  judgment  docketed 
against  him  in  the  clerk's  office  of  said  county,  and  execution  issued  thereon; 
and  the  County  Court  having,  on  an  order  to  show  cause,  directed  that  the 
Baid  transciipt  be  set  aside  and  the  clerk  of  Kings  county  cancel  the  judgment 
of  record: 

Held,  that  section  16  of  chapter  102,  Laws  of  1850,  which  declare?:  "No 
justice  of  the  peace,  other  than  the  police  justice  and  the  justices  elected  hi 
the  city  of  Biooklyn,  shall  have,  or  exercise  any  civil  or  criminal  jurisdic- 
tion in  said  city,  was  intended  to  give  to  the  police  justices  and  justices 
elected  in  Brooklyn  exclusive  jurisdiction  to  hold  courts  in  that  city,  bul  not 
to  take  away  the  general  jurisdiction  of  the  justices  of  the  peace  of  the  county, 
to  try  transitory  actions  within  their  jurisdiction  in  their  own  towns.  That 
the  justice  in  this  case  exercised  no  jurisdiction  in  the  city  of  Brooklyn.  He 
simply  issued  a  summons  in  the  town  of  New  Lots,  out  of  the  city,  and  upon 
proper  return  of  personal  service  proceeded  with  the  case  in  his  own  town, and 
entered  judgment,  the  constable's  return  giving  him  jurisdiction  of  the  per- 
son of  the  defendant. 

Held,  further,  that  the  County  Court  had  no  power,  on  motion,  to  set  aside 
the  transcript  and  vacate  the  judgment;  that  the  remedy  of  the  defendant 
was  by  appeal.  DOUGLASS  ».  REILLY 81 

2.  — —  Objections  as  to  jurisdiction,  regu larity,  etc.,  taken  in  —  duty  of  County 
Court  to  pass  upon.]  Upon  an  appeal  to  the  County  Court  from  a  judgment 
rendered  in  a  Justice's  Court,  it  is  the  duty  of  the  former,  when  a  new  trial 
is  to  be  had  before  it,  to  pass  upon  all  questions  raised  in  the  court  below  as 
to  the  jurisdiction  of  the  justice,  the  regularity  of  the  process,  its  service  and 
return,  and  whether  all  the  proper  parties  are  before  the  court;  and  in  case  it 
refuse  so  to  do  and  compels  the  appellant  to  proceed  with  a  new  trial,  upon 
which  a  judgment  is  rendered  against  him,  the  General  Term  will,  upon 
an  appeal  from  such  judgment,  reverse  the  same  and  direct  a  new  trial, 
even  though  such  objections  were  frivolous  and  devoid  of  merit. 

MAXON  v.  REED 818 

—  Appeal  from,  security  on  —  when  jurisdictional. 

See  KUNTZ  v.  LIGHT 14 

—  —  Ti'lf.  t<>  land — when  not  in  question  —  effect  of  judgment  in  ejectment. 

See  HALEY  «.  WHEELER 56* 

LANDLORD  —  Liability  of,  under  chapter  646,  Laws  of  1878  — for  intoxicat- 
ing liquors  furnished  by  bartender,  without  his  knowledge  and  against  his  orders. 

See  SMITH  v.  REYNOLDS 128 

Of  premises,  where  intoxicating  liquors  are  sold,  liable  for  injuries  caused 

by  their  sale. 

See  BERTHOLF  «.  O'REILLY 14 

OivU  damage  act — Recovery  of  damages  against  owner — permission  or 

knowledge  of  owner  must  be  proved,  not  presumed  or  inferred. 

See  MEAD  v.  STRATTON 14t 

See  CIVIL  DAMAGE  ACT. 

LANDLORD  AND  TENANT  —  Improper  construction  of  building,  causing 
mow  to  fatt  from  roof.]  Where  one  passing  upon  the  sidewalk  is  struck  and 
injured  by  snow  which  has  slid  from  a  roof  (so  constructed  as  to  render  the 
snow  falling  upon  it  liable  to  be  precipitated  upon  the  sidewalk),  the  owner  of 
the  building  is  liable  for  the  injuries  thereby  occasioned,  even  though  the 
building  be  at  the  time  in  the  occupation  of  a  tenant,  who  in  bound  to  make 

HI  needful  repairs.     WALSH  v.  MEAD 887 

Lessee  and  surety  — can  be  sued  jointly  under  Code,  %  120—  Continuing 

ruarantee. 

See  DECKER  v.  QAYLORD 110 

LAWS  OP  ANOTHER  STATE  —  Promissory  note — when  valid  notwith 
itanding  it  violates  the  law  —  knowledge  of  existence  of  law  —  a  question  of  fatt, 
•ot  of  law. 

See  PALMER  v.  MINAR •» 

HPN—VOI-.  VIII.         86 


682  INDEX. 


LEASE  —  Possession  under  —  defense  to  action  upon  —  Quantum  meruil.] 
1.  In  May,  1870,  the  defendant  entered  into  an  agreement  with  one  D.,  the 
owner  of  a  coal  yard,  by  which  he  was  to  deliver  coal  at  the  yard  for  D.  to 
sell,  to  remain  defendant's  property  until  sold  and  paid  for,  and  to  place  a 
man  in  the  office,  as  his  agent,  to  hold  the  coal  and  receive  the  proceeds  of 
the  sale  thereof,  which  proceeds,  after  certain  deductions  for  expenses,  as  pro- 
vided for  in  the  agreement,  were  to  be  divided  between  def eudunt  and  D.  In 
pursuance  of  this  agreement  defendant  had,  October  14th,  1870,  deposited  a 
large  quantity  of  coal  in  the  yard.  On  that  day  plaintiffs  purchased  the  yard 
upon  the  foreclosure  of  a  mortgage,  and  leased  it  to  the  defendant  until  April 
1st,  1871.  Subsequently  defendant  sold  the  coal  in  the  yard  and  assigned  his 
lease  to  G.,  who  thereafter  demanded  possession  of  the  yard  and  office  irom 
D.,  who  refused  to  give  up  the  possession  of  the  office  and  portions  of  the 
yard,  claiming  that  he  was  entitled  to  occupy  the  yard  and  sell  the  coal 
under  the  agreement  with  defendant.  G.  before  April  first  sold  all  the  coal 
sold  to  him  by  defendant,  and  stored  other  coal  in,  and  sold  the  same  from 
the  yard. 

In  this  action  to  recover  rent  due  under  the  lease,  defendant  defended  on 
the  ground  that  the  plaintiffs  had  failed  to  deliver  to  him  possession  of  the 
demised  premises.  Held,  1.  That  if  the  claim  of  D.,  that  he  was  entitled  to 
possession  under  his  agreement  with  defendant,  was  rightful,  then  defendant 
was  kept  out  of  possession  through  his  own  fault,  and  so  could  not  complain 
thereof. 

2.  That  if   such  claim  was  unfounded,  then  D.  was  a  wrong-doer  and 
defendant  should  have  removed  him. 

3.  That  as  defendant's  assignee  occupied  a  portion  of  the  premises  for  the 
entire  term,  he  was,  in  any  event,  liable  for  the  value  of  the  portion  so  occu- 
pied.    McKiNNEY  v.  HOLT 3df 

2.  Lessee  and  surety  —  can  be  sued  jointly,  under  Code,    §   120.]    A 

lease  was  signed  by  F.  S.  G. ,  and  then  by  C.  G.     Opposite  to  the  name  of 
the  latter  (whose  name  did  not  appear  in  the  body  of  the  lease)  was  written, 
' '  security  for  Frederick  S.  Gaylord. "  Held,  that  both  could  be  sued  in  one 
action  under  section  120  of  the  Code.     DECKER  v.  GAYLORD 110 

3.  Continuing  guarantee.]    The  lease  was  for  one  year,  but  had  a  pro- 
vision in  it  in  these  words:    "This  contract  is  to  be  renewed  for  three 
consecutive  years,  if  it  is  fulfilled  to  the  satisfaction  of  both  parties."    Held, 
that  the  guarantee  was  continuing  and  the  guarantor  liable  tor  the  second 
year's  rent  in  default.    Id. 

LEGISLATIVE  ACTS  —  Special  and  general — construction  of —  Chap.  444 
of  1874 — mllageof  Deposit — chap.  330  of  1873.]  That  provision  of  the  charter 
of  the  village  of  Deposit  which  provides  for  the  payment  of  all  sums  received 
for  licenses  into  the  treasury  of  the  village  is  not  repealed  by  chapter  444  of 
1874,  creating  boards  of  excise  for  the  several  counties  of  the  State. 

VILLAGE  OF  DEPOSIT  v.  DEVEREUX 817 

LEGISLATURE  —  Power  of,  to  cure  irregularity  in  assessment  —  taxing 
property  to  extent  of  assessment. 

See  GUEST  v.  CITY  OF  BROOKLYN 97 

LEVY  —  Reeeiptor  —  right  of —  has  a  lien  for  his  fees. 

See  ALIGER  «.  KEELER 126 

Sheriff  liable  for  release  of,  on  property  of  judgment  debtor  on  his  being 

•\djndged  a  bankrupt. 

See  ANSONIA  BRASS  AND  COPPER  Co.  v.  BABBITT. 157 

LICENSES  —  May  be  granted  for  less  than  a  year —  Chap.  175,  1870,  §8.] 
The  provision  that  all  the  licenses  granted  by  the  commissioners  of  excise 
shall  expire  at  the  end  of  one  year  from  the  tune  they  shall  be  granted,  is  a 
limitation  of  the  power  of  the  commissioners,  not  a  constituent  of  the  license 
itself,  and  within  the  limitation  aforesaid  the  commissioners  have  full  power 
to  determine  the  period  of  a  license.  Therefore,  when  a  person  was  indicted 
for  selling  liquor  after  May  1 ,  1875,  and  before  December  7,  1875,  without 
&  license,  held,  he  was  not  protected  by  a  license  granted  December  7,  1874, 
uad  which,  by  its  terms,  expired  May  1,  1875.  PEOPLE  v.  GALNEY M 


INDEX.  683 


LIEN — Subrogation  cf  subsequent  incumbrancer —  Judgmet*  -  sheriff" »  cer- 
iifcate  of  sale  on  —  valid  against  prior  undisclosed  agreement  of  judgment 
creditor.  ]  1.  The  defendant  was  the  holder  of  a  first  mortgage  on  premises  on 
which  there  was  a  prior  judgment.  The  plaintiff  was  the  assignee  of  a 
mortgage  on  the  same  premises,  between  which  aud  ihe  defendant's  mortgage 
there  existed  two  other  mortgages.  Prior  to  the  assignment  of  the  mortgage 
to  the  plaintiff,  the  holder  of  the  aforesaid  judgment  agreed  with  plaintiff's 
assignor  to  postpone  the  lien  of  such  judgment  to  that  of  the  mortgage  assigned 
plaintiff.  In  January,  1875,  the  premises  were  sold  under  the  iudgnient, 
and  purchased  by  the  defendant,  the  holder  of  the  first  mortgage,  the  sale 
being  made  without  notice  of  the  agreement  to  make  it  subordinate  to  plaintiff's 
mortgage. 

In  February,  1875,  the  defendant  foreclosed  its  mortgage,  made  the  plain- 
tiff a  party  defendant  as  subsequent  incumbrancer,  who  appeared  by  attorney, 
bat  put  in  no  answer.  Judgment  of  foreclosure  and  sale  was  entered  March 
22,  1875. 

May  21,  1875,  plaintiff  tendered  the  defendant  the  amount  due  on  the  fore- 
closure judgment,  and  demanded  an  nssignment  of  the  mortgage  and 
judgment.  Defendant  refused  to  receive  the  money  unless  the  plaintiff, 
would  pay  the  additional  sum  for  which  the  premises  were  sold  to  it,  on  the 
execution  issued  under  the  prior  judgment. 

Held,  that  the  tender  did  not  discharge  the  lien;  that  the  plaintiff  had  no 
standing  as  to  the  land  which  entitled  him  to  an  assignment  of  the  defendant's 
mortgage. 

Held,  also,  that  the  holder  of  the  judgment  having  the  title  and  the  right  to 
enforce  it,  making  no  reservation  and  giving  no  notice  indicating  that  it  was 
not  what  it  purported  to  be,  viz.,  the  first  lien  on  the  property  sold,  the  pur- 
chaser at  the  sheriff's  sale  took  the  title,  without  reference  to  the  agreement 
made  by  such  judgment  creditor  postponing  its  lien. 

FROST  v.  YONKERS  SAVINGS  BANK 26 

2.  Beceiptor  to  constable  —  right  of  to,  for  his  fees.}    A.  constable  levied 

on  certain  property  under  a  judgment  in  favor  of  the  defendant,  against  the 
plaintiff,  and  committed  the  property  to  the  defendant  as  a  receiptor.  Held, 
that  the  latter  acquired  a  valid  lien  upon  the  property,  for  his  just  and  law- 
ful charges  as  such;  and  that  payment  of  the  judgment  to  the  sheriff,  upon 
the  judgment  of  affirmance,  rendered  upon  appeal  to  the  County  Court,  did 
not  discharge  the  lien  of  the  defendant,  or  of  the  constable  for  his  fees. 

ALIGER  v.  KEELER 126 

A  claim  for  *er vices  rendered  a  trust  estate,  when  not  a  lien  thereupon. 

See  STANTON  v.  KINO 4 

Of  bailee,  not  lost,  because  of  not  being  expressed  in  receipt. 

See  HAZARD  «.  MANNING 613 

UFE  BENEFICIARY  —  When  may  be  compelled  to  disclose  personalty  held 
by  him. 

See  WILLIAMS  ».  PEABODY 971 

XJQUOR  T.AW  —  Civil  damage  act  —  when  cause  of  action  exists  under. 

See  QUAIN  *.  RUSSELL 819 

—  See  CIVIL  DAMAGK  ACT. 

L.TTN  ATIC  —  Promissory  note  made  by  —  action  upon  —  burden  of  proof  in. 

See  HICKS  v.  MARSHALL WT 

MAJORITY  —  When  acts  of,  of  stockholders,  do  not  bind  minority  —  Sale  qf 
entire  corporate  property,  for  stock  in  another  corporation  —  illegal. 

See  TAYLOR  t>.  EARLE  t 

Of '  taxablf,  inhabitant* — vote  of — what  constitutes. 

'See  CULVER  v.  VILLAOK  OF  FORT  EDWARD 840 

MLAUCIOUS  PROSECUTION  —  Entry  of  nolle  prosequi  vith  defendants 

atttnt,  a  sufficient  end  of  the  prosecution  i<  support  an  action. 

See  MOULTON  v .  BKKCHKR IOC 


684  INDEX. 


HAHRIAGJS  —  Contract  in  consideration  of —  when  void  under  statute  of 
/VWMfc. 

See  BROWN  ».  CONGER 9K 

MARRIED  WOMAN  —  Collection  of  debt,  charged,  on  her  separate  e*tate  — 
thould  be  by  common-law  action  —  not  by  action  for  foreclosure — Judgment  by 
default.]  1.  The  defendant,  a  married  woman,  made  her  promissory  note, 
in  and  by  which  she  in  express  terms  charged  her  separate  estate.  An  action 
was  brought  (by  service  of  summons  for  relief)  to  enforce  the  lien  upon  and 
payment  of  the  amount  thereof  out  of  the  defendant's  property.  Defend- 
ant did  not  appear,  and  on  default  plaintiff  obtained  an  order  of  reference  to 
compute  the  amount  due,  and  upon  the  report  of  the  referee  judgment 
was  entered,  adjudging  and  directing  that  the  defendant's  property  so 
charged  and  described  in  the  complaint  be  sold  by  a  referee  therein  named, 
and  that  the  defendant  be  barred  of  and  from  all  equity  of  redemption  in  said 
premises,  etc.  The  said  premises  were  sold  by  such  referee  in  pursuance  of 
Baid  judgment. 

Held,  that  sections  274  and  287  of  the  Code  provide  the  same  remedy  by  judg- 
ment and  execution  against  a  married  woman,  as  the  law  affords  against  other 
persons,  with  the  single  qualification  that  the  execution  can  be  levied  and  col- 
lected only  of  her  separate  property. 

That  the  statute  having  given  a  legal  remedy  which  was  adequate,  there 
was  no  occasion  for  administering  equitable  relief. 

That  although  formerly  such  a  contract  was  treated  as  an  appointment  of,  or 
charge  upon  the  separate  estate  of  a  married  woman,  and  the  only  remedy 
for  its  enforcement  was  by  bill  in  equity,  yet  that  mode  of  proceeding 
had  been  entirely  superseded  by  section  7  of  chapter  172  of  the  Laws  of 
1862,  which  enacted  that  "  a  married  woman  may  be  sued  in  any  of  the  courts 
of  this  State,  and  whenever  a  judgment  shall  be  recovered  against  a  mar- 
ried woman,  the  same  may  be  enforced  by  execution  against  her  sole  and 
separate  estate  in  tJie  same  manner  as  if  she  were  sole." 

That  such  enactments  were  in  pari  materia  with  the  special  statutes  for 
the  protection  of  married  women,  and  should  be  so  construed  as  to  insure  to 
them  the  same  protection  against  the  sacrifice  of  their  property  which  the 
law  gives  to  &  feme  sole,  viz.,  levy,  advertisement,  right  of  redemption,  etc. 

That  the  more  summary  and  expensive  remedy  pursued  in  this  case,  of 
foreclosing  a  lien  or  charge,  and  thereby  cutting  off  the  right  of  redemption, 
was  in  contravention  thereof.  ANDREWS  «.  MONILAWS 6* 

2.  Relief  greater   Uian    tiiat  asked  for  in  complaint — irregular. ~\    A 

judgment,  taken  by  default,  giving  greater  relief  than  that  demanded  in  the 
complaint,  should  be  set  aside.    Id. 

3.  Note  by,  charging  separate  estate,  though  for  debt  of  husband,  valid  — 

blank  place  of  payment,  can  be  filled  in  by  holder  —  Practice  —  immaterial  aver- 
ments.]   A  married  woman  executed  .and  delivered  the  following  note: 

"$60.00.  SYRACUSE,  N.  Y.,  February  26,  1875. 

Six  months  after  date  I  promise  to  pay  to  the  order  of  Waggoner  &  Eager 
sixty  dollars  at  ,  value  received,  with  use.  And  for  value 

received,  I  hereby  agree  that  the  above  sum  shall  be  paid  out  of  my  separate 
estate,  and  make  the  same  a  charge  thereon. 

(Signed)  HARRIET  E.  MILLINGTON." 

Held,  that  the  note  was  not  avoided  by  filling  in  after  the  word  "  at,"  in  & 
blank  left  for  the  place  of  payment, "  State  Bank  of  Syracuse,  N.  Y.,"  the  leav- 
ing of  such  blank  giving  implied  authority  to  the  lawful  holder  to  fill  it  up 
by  designating  a  place  of  payment ;  that  the  body  of  the  note  contained  a 
sufficient  admission  that  the  defendant  was  possessed  of  a  separate  estate. 

That  an  allegation  in  the  answer  that  the  note  was  given  for  a  prior  indebt- 
edness of  her  husband  in  his  own  business  and  for  his  own  benefit,  and  that 
ehe  was  solicited  to  sign  said  note  for  her  husband  and  did  so  without  any 
Intention  of  charging  ner  separate  estate  or  knowing  that  she  had  done  so, 
following  a  general  denial  of  each  and  every  allegation  in  the  complaint 
"except  as  hereinafter  stated  and  admitted/'  had  the  sole  legal  effect  to 
admit  the  making  of  the  note,  and  the  qualification  of  the  admission  was 
mmaterial. 


INDEX.  685 

MARRIED  WOMAN-     Continued.  FAam 

That  such  allegation  constituted  no  defense  to  the  note. 

WAGGONER  v.  MILLLNGTON ..  143 

4. Chapter  90  of  1860  —  when  separate  estate  of  married  woman  chargeable 

under  —  debt  contracted  by  her  as  his  agent.]  Under  section  1  of  chapter  90 
of  1860,  providing  that  the  property  of  any  married  woman  shall  not  be 
liable  for  the  debts  of  her  husband,  "  except  such  debts  as  may  have  been 
contracted  for  the  support  of  herself  or  her  children,  by  her  as  his  agent," 
her  estate  is  liable  for  the  price  of  goods  purchased  by  her  as  his  agent,  which 
were  necessary  for  and  used  in  the  support  of  herself  and  her  children. 
COVERT  v.  HUGHES t 305 

5.  Separate  estate —  Contracts  —  benefit  of  separate  estate — presumption 

of  law.]  Where  a  married  woman,  who  has  a  separate  estate  and  carries  on 
business  in  relation  thereto,  keeping  a  bank  account  in  her  own  name,  draws 
a  check  upon  such  account  payable  at  a  future  day  on  which  she  borrows 
money,  the  law  presumes,  in  the  absence  of  evidence  to  the  contrary,  that 
such  money  was  borrowed  for  the  benefit  of  her  separate  estate,  and  holds 
her  liable  therefor.  NASH  v.  MITCHELL 471 

Assumption  of  mortgage  by  —  coverture  no  defence. 

See  VROOMAN  v.  TURNER 78 

Husband  and  wife  —  contracts  between  —  validity  of — condonation  of 

adultery. 

See  VAN  ORDER  v.  VAN  ORDER 815 

Policy  of  insurance  —  aligned  by  —  repayment  of  amount  paid  for 

assignment  -*•  a  condiiwn  of  restitution  of  such  policy  to  her. 

See  WILSON  v.  LAWRENCE 593 

MASTER  AND  SERVANT  —  Liability  of  master,  for  injuries  io  acrvcent.} 
The  defendant,  a  physician,  attended  a  woman  who  died  of  small  pox,  and 
subsequently  employed  the  plaintiff  to  whitewash  the  house  in  which  the 
death  occurred.  The  plaintiff,  who  knew  that  the  woman  had  died  of 
small  pox,  entered  and  whitewashed  the  house,  relying  upon  the  assurances  of 
the  defendant  that  the  house  had  been  thoroughly  disinfected,  and  that  he 
would  be  entirely  safe  in  so  doing.  Plaintiff  having  contracted  the  disease 
in  the  house,  subsequently  brought  this  action  to  recover  the  damages  sus- 
tained thereby.  Held  ( l ),  that  the  relation  between  the  parties  was  that  of 
master  and  servant;  and  (2),  that  the  plaintiff  was  entitled  to  recover  in  case 
the  jury  should  find,  on  all  the  facts,  that  the  plaintiff  did  not  act  rashly  and 
inexcusably  in  entering  the  house  under  the  employment ;  and  further,  that 
tha  defendant  had  not  conducted  towards  the  plaintiff  with  due  care  and 
prudence. 

The  liability  of  a  master  for  injuries  sustained  by  the  servant  in  the  course 
of  his  employment,  considered.    SPAN  v.  ELY 955 

MATRIMONY  —  Change  of  concubinage  into  —  evidence  of. 

See  POSTER  v.  HAWLEY 68 

MECHANIC'S  ~LLEN—Chap.  489,  Laws  of  187$  — materials  furnished  to 
vendee  in  possession  under  executory  contract  —  Consent —  Title  of  owner  of  fee 
not  affected  —  when.]  Chapter  489,  Laws  of  1873,  does  not  authorize  the  cre- 
ation of  a  lien  as  against  the  owner  of  the  legal  title  to  property,  in  regard  to 
which  there  is  an  outstanding  executory  contract  of  sale  with  the  vendee  in, 
and  entitled  to  the  possession  of  the  land,  for  materials  and  labor  furnished  to 
the  vendee  on  a  building  contract  made  with  him,  or  for  his  own  benefit,  unless 
such  labor  or  supplies  are  furnished  with  the  express  consent  of  the  owner  of 
the  fee  of  the  land.  CIIAIG  v.  SWINEKTON 144 

2.  Bill  of  particulars  —  verification  of.]     Where,  at  the  time  of  serving 

a  notice  to  foreclose  a  mechanic's  iien,  a  bill  of  particulars  was  served,  sworn 
by  the  claimant  to  be  "in  all  respects  true,  to  the  best  of  his  knowledge  and 
belief."     Held,  that  the  verification  was  sufficient.     GREY  v.  VORHIS 61£ 

3.  Bill  of  particulars — effect  of  failure  to  serve.]    If,  in  an  action  brought 

to  foreclose  a  mechanic's  lien,  the  plaintiffs  fail  to  serve  with  the  notice  the 
bill  of  particulars  required  by  section  10  of  chapter  403  of  1854,  the  remedy  of 


686  INDEX. 

MECHANIC'S  LIEN—  Continued,  VAM 

the  defendant  is  to  move,  before  answering,  to  set  aside  the  proceedings,  or 
stay  them  until  such  service  be  made. 

Such  defect  is  waived  by  the  service  of  an  answer,  and  cannot  be  taken 
advantage  of  upon  the  trial.  NORCOTT  t>.  FIRST  BAPTIST  CHURCH  OF  ROME.  .  639 

MEMBER  —  Of  corporation  —  expulsion  of. 

See  PEOPLE  EX  REL.  ELLIOTT  t>  N.  Y.  COTTON  EXCHANGE 118 

MERGER.  —  Parol  contract  —  when,  not  merged  in  subsequent  written  contract. 

See  HILL  v.  SYRACUSE,  B.  AND  N.  Y.  R.  R.  Co 2W 

MIS  JOINDER— Of  causes  of  action  — Mechanic's  lien— foreclosure  of — 
Fraudulent  grantees  of  premises — parties  defendant. 

See  TISDALE  t>.  MOORE 19 

MISTRIAL —  For  referee  to  report  where  evidence  is  conflicting,  that  it  "  leave* 
the  mind  in  doubt "  —  It  in  the  referee's  duty  to  pass  upon  the  facts  and  find  one 
way  or  the  other  on  them. 

See  BRADLEY  v.  MCLAUGHLIN 545 

MORTGAGE  —  Assumption  of  by  grantee  —  right  of  grantor  —  Foreclosure  — 
action,  at  law  to  recover  debt.]  1.  The  plaintiff  conveyed  a  lot  to  the  defendant 
subject  to  a  mortgage,  which  the  latter  assumed  and  agreed  to  pay.  In  an 
action  to  foreclose  the  mortgage,  to  which  the  plaintiff,  but  not  the  defendant, 
was  made  a  party,  a  judgment  for  deficiency  was  entered  against  and  subse- 
quently paid  by  the  plaintiff.  In  an  action  brought  by  him  to  recover  the 
amount  so  paid,  held,  that  section  153  of  2  Revised  Statutes  (Edm.  ed.),  page 
199,  providing  that  no  proceedings  shall  be  had  at  law  for  the  recovery  of  a 
debt  secured  by  a  mortgage  after  a  decree  has  been  entered  in  an  action  to 
foreclose  the  same,  unless  authorized  by  the  court,  did  not  apply  to  an  action 
upon  a  covenant  such  as  formed  the  subject  of  the  present  action. 

The  object  of  that  provision  was  to  limit  a  party  attempting  to  enforce  the 
collection  of  his  debt  by  the  foreclosure  of  a  mortgage  to  that  proceeding, 
unless  good  cause  could  be  shown  why  resort  should  also  be  had  to  an  action 
at  law.  COMSTOCK  v.  DROHAN 37J 

2.  Judgment  roU  in  foreclosure  against  grantor — Evidence  against  grantee.} 

Although  the  defendant  was  not  a  party  to  the  foreclosure  suit,  the  judg- 
ment recovered  therein  was  competent  evidence  in  this  action  to  show  the 
amount  of  the  mortgage  debt,  the  sale  of  the  property,  and  the  amount  of 
the  deficiency.  Id. 

3.  Although  not  notified  of  action.]  It  was  not  necessary  for  the  plain- 
tiff to  give  notice  to  the  defendant  of  the  pendencj'  of  the  foreclosure  suit. 
Where  one  person  has  become  obligated  to  protect  another  against  the  conse- 
quence of  his  or  her  default  in  payment,  a  judgment  regularly  recovered 
against  the  party  entitled  to  such  protection  is  prima  facie  evidence  of  the 
facts  established  by  it  in  his  favor,  in  an  action  against  the  person  bound  to 
make  the  indemnity.  Id. 

4.  Costs.']    In  this  action, ,held,  that  the  plaintiff  was  entitled  to  recover 

the  amount  of  the  judgment  paid  by  him,  and  that  the  costs  and  expenses  of 
the  foreclosure  suit  should  be  deducted  from  the  amount  realized  upon  the 
sale  of  the  property.  Id. 

0.  Covenant  in  deed  assuming  —  enures  to  benefit  of  mortgagee  —  dis- 
tinction between  the  effect  of  such  covenant  when  made  by  grantee  and  mort- 
aagee.]  H.  and  wife  executed  a  mortgage,  which  was  duly  assigned  to  C. 
Afterward  H.  and  wife  sold  the  premises  to  B.,  and  executed  a  deed  therefor 
without  the  name  of  any  grantee,  but  with  a  blank  space  left  for  the  inser- 
tion thereof.  The  deed  contained  full  covenants  of  title,  and  a  clause  subse- 
quent to  the  "  habendum,"  in  the  following  words  (alter  enumerating  cer- 
tain other  mortgages):  "  Subject  to  the  payment  of  another  certain  indenture 
of  mortgage  now  upon  the  within  described  premises,  amounting  to  $3,000  " 
(meaning  the  mortgage  in  question),  "  which  said  mortgage  the  said  party 
of  the  second  part  hereby  agrees  to  assume,  pay  off  and  discharge,  the  same 
having  been  allowed  out  of  the  consideration  or  purchase  money  hereinbe- 
fore expressed." 


INDEX.  687 

MORTGAGE  —  Continued.  ,A-B, 

B.  was  indebted  to  a  firm  of  which  defendant  8.  was  a  member,  and  after- 
ward agreed  with  S.,  by  parol,  that  he  should  insert  the  name  of  S.  as  grantee 
in  the  deed;  that  S.  should  take  the  title,  and  that  the  profits  therefrom 
should  be  applied  on  account  of  the  said  indebtedness  of  B.  to  the  defend- 
ant's firm.  B.  accordingly  inserted  the  defendant's  name  in  the  deed  and  had 
the  same  recorded,  with  his  knowledge  and  assent 

Afterward  B.  procured  a  purchaser  for  the  premises,  and  contracted  in 
his  own  name  for  the  sale  thereof,  and  S.,  in  pursuance  thereof  and  at  the 
request  of  B.  granted  and  conveyed  the  premises  to  such  purchaser,  in  fee 
simple,  by  deed,  with  the  usual  full  covenants,  including  covenant  of  seizin, 
subject  to  the  said  mortgage  and  other  incumbrances;  and  this  deed  con- 
tained a  clause  similar  to  the  other,  providing  for  the  assumption  and  payment 
of  said  mortgage  by  such  purchaser.  The  mortgage  was  foreclosed,  S.  not 
betng  made  a  party,  although  his  grantee  was;  but  no  judgment  for  defi- 
ciency was  demanded  against  him.  C.  purchased  in  the  premises  on  the 
sale,  and  brought  his  action  against  S.  on  the  covenants  in  the  deed  from  EL 
to  S.,  to  recover  the  deficiency  on  such  sale. 

Held,  that  S.,  as  regarded  H.,  was  the  absolute  owner  in  fee  of  the  prom- 
ises, and  bound  to  pay  the  consideration  agreed  upon  for  the  purchase;  that 
the  rights  of  the  parties  were  not  to  be  determined  by  the  facts  existing  at 
the  execution  of  the  blank  deed,  but  by  those  existing  when  8.  consented  to 
take  the  deed  with  a  covenant  to  pay  the  plaintiff's  mortgage;  that  the 
defendant,  by  the  deed,  took  the  property  of  H.  and  agreed  to  pay  its  pur- 
chase-price to  the  plaintiff.  CAMPBELL  v.  SMITH 0 

6.  Foreclosure  —  Usury  —  Guarantee  —  fraud — trial  of  issues  of,  by  the 

court,  discretionary.]  In  an  action  for  the  foreclosure  of  four  bonds  and 
mortgages  executed  by  the  defendant  George  VV.  Nelson;  for  a  sale  of  the 
mortgaged  premises  and  judgment  for  deficiency  against  him,  and  for  a  judg- 
ment against  the  defendant  Ruea  Nelson  for  any  deficiency  up  to  $20,000, 
on  the  ground  of  the  execution  by  him  of  an  instrument,  by  which  he  cov- 
enanted that  on  a  sale  under  foreclosure  of  said  mortgages,  the  mortgaged 
premises  should  yield  a  sum  sufficient  to  pay  the  amount  decreed,  with  the 
costs  and  expenses  of  sale,  or  in  default  thereof  he  would,  on  demand,  pay 
any  deficiency  up  to  $20,000  which  might  result  on  such  sale  or  sales,  the 
defendant  George  W.  Nelson  set  up  usury  as  a  defense,  and  the  defendant 
Ruea  Nelson  also  plead  usury,  and  that  the  aforesaid  instrument  executed  by 
him  was  procured  to  be  so  executed  by  fraud. 

Held,  that  it  was  an  equitable  action  purely,  and  it  rested  in  the  discretion 
of  the  court  either  to  ask  the  aid  of  a  jury  to  inform  the  conscience  of  the 
court,  or  to  decide  the  case  without  such  aid;  that  the  defendant  could  not 
claim,  as  matter  of  right,  to  have  the  issues  framed  and  tried  at  law. 

KNICKERBOCKER  LIFE  INS.  Co.  v.  NELSON SI 

7. After  payment —  cannot  be  made  to  continue,  as  a  valid  tecurity — trust 

in  relation  to.]  No  trust  can  be  created  and  attached  to  an  existing  mortgage, 
BO  as  to  make  it  a  valid  security  for  any  greater  amount  than  that  specified 
in  the  body  and  upon  the  face  thereof. 

After  the  execution  and  delivery  of  a  mortgage,  but  on  the  same  occasion, 
and  while  the  parties  were  still  together,  it  was  agreed  between  the  mortgugor 
and  the  mortgagee  that  the  latter  should  hold  the  mortgage  until  his  debt  was 
paid,  and  then  assign  it  to  the  plaintiff,  to  be  held  by  her  as  security  for  a  debt 
owing  to  her  by  the  mortgagor. 

The  debt  of  the  mortgagee  having  been  paid,  the  mortgage  was  assigned 
to  the  plaintiff,  who  brought  this  action  to  foreclose  it.  Held,  that  the  pay- 
ment of  the  debt  to  the  mortgagee  extinguished  his  mortgage,  and  the  assign- 
ment to  the  plaintiff  was  a  nullity.  HTJBBELL  t>.  BLAKEBLEE 808 

Foreclosure  —  resale  of  property  —  "  difference  and  costs,  and  expenses  of 

resale," — subsequent  taxes  included  in. 

See  RUHE  v.  LAW 261 

Assumption  of,  by  grantee— grantee  liable  to  pay,  though  no  preceding 

premteeieas. 

See  VROOMAW  t>.  TTTRNXR 78 


688  INDEX. 

MORTGAGE—  Continued. 
-  Ax*u>ned  by  grantee,  may  be  released  by  grantor  —  assent  of  mortgagee  not 


See  STEPHENS  v.  CASBACKER  .....................................  116 

--  Agreement  to  extend,  between  holder  and  grantee  covenanting  to  assume, 
made  without  consent  of  grantor  (mortgagor)  —  discharges  mortgagor. 

See  CALVO  r.  DAVIBS  ...............  ............................  221 

-  Subrogation  —  of  subsequent  incumbrancer. 

See  FROST  v.  YONKERS  SAVINGS  BANK  ..........................     26 

MORTGAGOR  AND  MORTGAGEE  —  Mortgage  —  covenant  in  deed,  assum- 
ing —  Distinction  between  such  covenant  when  made  by  grantee  and  mortgagee. 

See  CAMPBELL  v.  SMITH  ........................................      i 

MORTGAGEE  —  Assent  of  —  not  necessary  to  validity  of  release  by  grantor,  of 
grantee's  assumption  of  mortgage. 

See  STEPHENS  v.  CASBACKKR  ...................................  116 

MOTION  —  County  Court  has  no  power  on  motion  to  vacate  judgment  of  Jus- 
tice's Court. 

See  DOUGLASS  v.  REILLY  ........................................    85 

-  In  first  department  —  to  confirm  referee's  report  made  under  interlocutory 
decree  —  at  what  Special  Term  to  be  heard. 

See  EMPIRE  B.  AND  M.  L.  Assoc.  v.  STEVENS  ......................  515 

MTJNICIPAL  CORPORATION  —  Street  opening  —  neglect  of  owner  to 
remove  building  —  unauthorized  acts  of  officers  in  so  doing  —  liability  of  city 
therefor.']  1.  The  city  of  New  York  having  instituted  proceedings  to  acquire 
title  to  the  lands  necessary  for  the  widening  of  Church  street,  an  award  was 
made  to  the  plaintiffs  for  land  taken  from  them  and  for  the  expense  of 
removing  the  buildings  thereon.  Subsequently,  upon  their  failure  to  remove 
the  buildings,  the  street  commissioner,  whose  duty  it  was  to  take  charge  of 
the  opening  and  altering  of  streets  and  avenues,  advertised  them  for  sale  and 
paid  over  the  proceeds  to  the  defendant.  In  an  action  by  the  plaintiffs  to 
recover  the  value  of  the  buildings,  held  (1),  that  the  materials  in  the  buildings 
belonged  to  the  plaintiffs,  and  that  it  was  unlawful  for  the  defendant  to  sell 
the  same;  (2),  that  though  the  street  commissioner  was  not  authorized  to 
Bell  the  buildings,  yet,  as  he  acted  for  the  defendant  in  good  faith  and  in 
pursuance  of  a  general  authority  possessed  by  him,  it  was  liable  therefor. 

PETERS  v.  MAYOR  .................................................  405 

2.  -  Measure  of  damages.]  The  plaintiffs  should  be  limited  in  their 
recovery,  to  the  amount  realized  on  the  sale  and  actually  paid  over  to  the 
defendants,  with  interest,  less  the  amount  allowed  to  them  for  the  removal 
of  the  buildings.  Id. 

8.  -  Construction  of  streets  —  surface  water  —  collection  of  into  one  stream.  ] 
Although  no  action  can  be  maintained  for  the  diversion  from  its  ordinary 
course  of  the  surface  water  arising  from  rains  and  melting  snow,  yet  if  such 
water  be  collected  into  a  single  channel  and  cast  in  a  large  volume  upon  the 
land  of  an  adjacent  owner,  he  may  maintain  an  action  to  recover  the  dam- 
ages sustained  thereby. 

In  pursuance  of  an  ordinance  by  the  common  council  of  the  defendant, 
a  street  was  constructed  in  the  city  of  Syracuse,  whereby  the  surface  water 
from  a  large  area,  which  had  formerly  flowed  through  no  well  defined  chan- 
nels over  the  adjoining  low  lands,  was  collected  into  a  single  stream  and 
thrown  upon  the  land  of  the  plaintiff.  Held,  that  he  was  entitled  to  main- 
tain an  action  to  recover  the  damages  sustained  thereby. 

BASTABLE  v.  CITY  OF  SYRACUSE  ......................................  68^ 

4.  -  Street  regulations  —  Railroad  —  §  14,  sub.  5  of  title  3  and  §  19  of  title 
11  of  chapter  461  of  1871,  construed.]  Power  was  granted  to  Long  Island 
City  by  its  charter,  to  regulate  the  use  of  its  streets  by  railways  ;  such 
charter  also  provided  that  nothing  therein  contained  should  be  construed 
as  granting  to  said  municipality  power  to  prohibit  or  control,  in  any  man- 
ner, the  use  of  steam  power  on  any  railroad  from  any  part  of  Long  Island  to 
the  East  river,  and  such  railroad  should  have  an  unobstructed  right  to  run  to 


INDEX.  089 

CORPORATION  —  Continued.  PA8B. 

the  East  river  with  their  locomotives  and  cars,  but  should  furnish  suitable 
guards  or  signals  at  the  street  crossings  for  the  protection  of  the  public. 
Held,  that  the  legal  effect  of  this  latter  provision  was  to  exempt  the  railroad 
of  defendant,  which  ran  from  a  part  of  Long  Island  through  said  city  to  the 
East  river,  from  an  ordinance  requiring  it  to  station  a  flagman  at  its  crossings. 

LONG  ISLAND  CITY  v.  LONG  ISLAND  R.  R.  Co 68 

Assessment — New  York  city  —  when  vacated,  under  chap.  580  of  1870. 

See  MATTER  OP  N.  Y.  PHOT.  EPIS.  PUBLIC  SCHOOL 457 

Assessment — payment  of  ,  under  protest  —  Voluntary  payment  —  right  to 

recover  amount  paid. 

See  PEYSER  v.  MAYOR 418 

Department  of  public  charities  and  correction,  New  York  —  can  neither 

tut  nor  be  sued. 

See  N.  Y.  BALANCE  DOCK  Co.  v.  MAYOR 247 

Officers  of —  duties  imposed  on  —  when  not  in  the  interest  of,  or  prescribed 

by  the  charter  of  the  municipality  —  corporation  not  liable  for  failure  or  refusal 
of  its  officers  to  perform. 

See  SAW  MILL  Co.  v.  CITY  OF  BROOKLYN  87 

Municipal  corporation  —  Injunction  —  restraining  city  from  confirming 

an  assessment  —  no  defense  against  contractor  entitled  to  his  pay  on  the  confirma- 
tion, unless  diligence  is  shown  to  remove  it. 

See  BOWERY  NAT.  BANK  v.  MAYOR 234 

Obstruction  of  streets  —  License  from  corporation,  when  presumed  — Injury 

to  traveler  —  liability  of  party  causing  —  bound  by  judgment  against  corporation. 

See  VILLAGE  OP  SENECA  FALLS  v.  ZALINSKI  571 

MUNICIPAL  OFFICERS  —  Duties  imposed  on  —  when  not  in  the  interest  or 
prescribed  by  the  charter  of  the  municipality —  corporation  not  liable  for  failure 
or  refusal  of  its  officers  to  perform.']  A  municipal  corporation  is  not  liable  in 
damages  to  a  private  part  v,  for  the  failure  or  refusal  of  any  of  its  officers  to 
perform  a  duty,  not  pertaining  to  the  interests  or  franchises  of  the  corpora- 
tion, nor  arising  under  the  charter  thereof,  but  imposed  upon  such  officers 
by  a  special  act  of  the  legislature,  in  relation  to  an  improvement  instituted 
by  the  State  for  the  private  benefit  of  a  locality,  and  not  for  that  of  the 
people  of  the  city  at  large. 

Such  a  duty  is  not  imposed  upon  the  corporation,  nor  are  such  officers 
called  upon  to  act  in  their  corporate  capacity. 

For  the  purposes  of  such  an  act  they  become  the  public  and  administrative 
officers  or  agents  of  the  State,  and  they  act  or  refuse  to  act  for  the  State 
and  the  locality  to  be  benefited,  and  not  for  the  city. 

SAW  MILL  Co.  v.  CITY  OP  BROOKLYN 17 

NATIONAL  BANK  —  Taxation  —  Actual,  not  par  value  of  stock,  the  bant 
of — Surplus.]  The  actual  and  not  the  par  value  is  the  standard  to  be 
adopted  by  commissioner  of  taxation,  in  assessing  the  value  of  shares  of  the 
capital  stock  of  a  national  bank. 

Such  valuation  is  not  affected  by  the  fact  that  H  portion  of  the  capital  of  the 
bank  is  invested  in  United  States  bonds,  or  by  the  fact  that  the  bank  \» 
required  by  law  to  accumulate  and  retain  a  reserve. 

The  actual  value  of  the  stock,  diminished  by  the  proportionate  value  of  the 
real  estate  owned  by  the  bank,  furnishes  the  proper  sum  upon  which  to 
»sseas  the  tax.  PEOPLE  v.  COMMISSIONERS  OF  TAXES 588 

NEGLIGENCE  —  Of  administratrix,  in  keeping  money  of  the  estate  — 
vthat  is.]  1.  An  administratrix  kept  a  large  amount  of  money  (the  collec- 
tions from  the  sales  of  goods  in  a  store  and  of  notes  and  accounts  of  the 
intestate),  in  a  trunk  in  a  bedroom  occupied  by  her  crippled  son,  being  one 
of  the  rooms  occupied  by  her  family  adjoining  the  store.  Part  of  such  col- 
lections had  been  kept  there  over  a  year.  The  nearest  bank  was  twelve 
miles  from  where  she  lived.  The  money  was  stolen.  Held,  that  had  the 
money  been  only  a  portion  of  the  estate  lately  collected,  and  bad  the  rest 
been  deposited  in  bank,  she  might  have  been  "held  authorized  to  keep  the 

Hux— VOL.  VIII.         87 


690  INDEX. 

NEGLIGENCE  —  Continued. 

same  where  she  did,  until  a  proper  opportunity  to  deposit  it  in  the  bank 
occurred;  but  as  the  whole,  or  nearly  all,  the  fund  had  been  allowed  to 
remain  in  such  an  insecure  place  for  nearly  a  year,  when  it  was  finally 
stolen,  it  was  such  a  violation  of  the  ordinary  laws  of  prudence  as  consti- 
tuted negligence  for  which  she  was  liable.  CORN  WELL  t.  DECK 123 

2.  Hiding  on  platform  of  street  car  —  proximate  cause  of  death.} 

Where  a  passenger  upon  a  street  car  in  the  city  of  New  York,  being  unable 
to  obtain  a  seat  in  the  ulterior  of  the  car,  remains  standing  upon  the  plat- 
form thereof,  he  is  not  gnilty  of  such  contributory  negligence  as  prevents 
him  from  recovering  damages  for  injuries  sustained  by  him,  in  being  thrown 
from  the  car  in  consequence  of  the  negligence  of  the  driver  thereof. 

By  his  fall  from  the  car  the  arm  of  the  deceased  was  broken  above  the 
elbow,  the  broken  fragments  of  the  bone  protruding  through  the  skin  and 
resulting  in  the  development  of  a  poisonous  discharge,  which,  being  absorbed 
by  the  blood,  caused  his  death.  Held,  that  the  wrongful  act  of  the  defendant 
in  occasioning  the  wound  was  the  cause  of  his  death  within  the  meaning  of 
the  statute,  and  that  the  defendant  was  liable  for  the  damages  occasioned 
thereby.  GINNA  «.  SECOND  AVENUE  R.  R.  Co 494 

8. Landlord  and  tenant  —  construction  of  building.]     Where  premises 

are  affected  by  a  nuisance  at  the  time  of  their  demise,  the  owner  is  liable  for 
SJiy  injury  occasioned  by  it  to  a  third  person,  even  though  the  negligence  of 
the  tenant  contributed  thereto.  WALSH  v.  MEAD 887 

Master  and  servant  —  liability  of  former  for  imprudent  use  of  servants 

services. 

See  SPAN  v.  ELY 265 

—  Railroad,  company  — fire  occasioned  by  sparks  —  burden  of  proof. 

See  McCAio  v.  ERIE  RAILWAY  Co 599 

NEGOTIABLE  PAPER  —  Invalid  in  hands  of  payee  —  bona  fide  purchaser 
<f — recovery  by,  restricted  to  amount  paid.]  An  indorsee  of  commercial 
paper,  not  valid  as  a  legal  obligation  in  the  hands  of  the  payee  by  whom  it 
was  negotiated,  is  restricted  in  his  recovery  in  an  action  against  the  maker, 
to  the  amount  advanced  by  him  upon  the  faith  of  the  paper,  together 
with  interest  thereon.  TODD  v.  SHELBOTJRNE 510 

NEW  YORK  —  Section  96,  chap.  335  of  1873  —  Attorney  for  colkction  of  per 
tonal  taxes  —  right  of,  to  costs.  ]  1 .  Under  section  96  of  the  charter  of  the  city  of 
New  York  (chap.  335  of  1873),  providing  that  no  officer  of  the  city  govern- 
ment shall  receive  any  fees,  perquisites  or  commissions,  or  any  per  centage, 
but  that  every  such  officer  shall  be  paid  a  fixed  salary,  the  attorney  for  the 
collection  of  personal  taxes  is  not  entitled  to  retain  the  costs  recovered  in 
actions  brought  by  him,  but  must  pay  the  same  over  to  the  city. 

The  provision  of  the  said  section,  that  every  officer  who  shall  receive  any 
money  which  should  be  paid  over  to  the  city  shall,  before  he  shall  be  entitled 
to  receive  any  salary,  make  a  return  to  the  comptroller  showing  the  amount 
thereof,  applies  only  to  the  officers  themselves  and  not  to  their  assistants  or 
subordinates.  GALE  v.  MAYOR 870 

2.  Assistant  attorney.]    Accordingly,  in  an  action  brought  by  the 

assistant  to  the  attorney  for  the  collection  of  taxes  to  recover  his  salary, 
held,  that  the  fact  that  he  had  received  and  still  held  costs,  which  belonged 
to  the  city,  did  not  constitute  a  full  defense  to  the  action,  but  only  author- 
ized the  deduction  by  the  city  of  such  amount  from  what  was  due  to  the 
plaintiff.  Id 

Assistant  district  attorney  of —  State  officer — salary  of —  not  affected  by 

tKap.  588  of  1871. 

See  FELLOWS  v.  MAYOR 484 

Board  of  supervisors  of — pouter  to  appoint  deputy  dark  —  appropriation 

far  payment  of. 

See  DUNPHY  «.  MAYOR 480 


INDEX.  691 

NEW  YORK—  Continued.  riam> 

Department  of  public  charities  and  correction,  in  —can  neither  me  nor  be 

NMd. 

See  N.  Y.  BALANCE  DOCK  Co.  v.  MAYOR 847 

Assessment — purchase  of  property  subsequent  to  confirmation  of— pro- 

turned  to  have  been  made  subject  to  — party  aggrieved  —  who  is.  under  chop.  388 
o/1858. 

See  MATTER  OF  MOORE 518 

NEXT  OF  KIN  —  Incompetent,  though  called  to  testify  against  his  interest, 
under  §  399  of  the  Code. 

See  LE  CLARE  v.  STEWART 127 

NOLLE  PROSEQUI  —  Entry  of,  with  defendant's  assent,  sufficient  end  of  the 
prosecution  to  support  an  action  for  malicious  prosecution. 

See  MOULTOK  v.  BEECHER 100 

5TOTE  —  Blank  place  of  payment,  can  be  filled  in  by  holder. 

S&e  WAGGONER  v.  MILLINGTON  .*. 1 43 

Liability  on,  for  indorsement  —  may  be  limited  by  Hie  terms  of  its  delivery  — 

when. 

See  LATTIMER  «.  HILL 171 

NOTICE  —  Of  examination  of  party,  under  §  391  of  the  Code  —  must  be  served 
on  the  attorney  as  well  as  the  pcvrty,  where  the  latter  has  appeared  in  the  action  by 
attorney. 

See  PLUMMER  v.  BBLDEN 455 

To  creditors  to  present  claims  —  when  sufficient — under  27?.  S.,  p.  88, 

§§  34,  38. 

See  PRENTICE  v.  WHITNEY 900 

NUISANCE  —  Improper  construction  of  building,  causing  snow  to  fall  from 
roof.]  1.  Where  the  roof  of  a  building,  in  a  large  city,  is  so  constructed 
as  to  render  the  snow  falling  upon  it  liable  to  be  precipitated  upon  the  side- 
walk, and  there  is  no  adequate  guard  at  the  edge  to  retain  it,  it  is,  in  judg- 
ment of  law,  a  nuisance.  WALSH  v.  MEAD 387 

2. Liability  of  owner,  for  injuries  resulting  from  negligence.  ]      Where 

one  passing  upon  the;  sidewalk  is  struck  and  injured  by  snow  which  has 
slid  from  a  roof,  so  constructed,  the  owner  of  the  building  is  liable  for  the 
injuries  thereby  occasioned,  even  though  the  building  be  at  the  time  in  the 
occupation  of  a  tenant,  who  is  bound  to  make  all  needful  repairs.  Id. 

8.  Landlord   and  tenant  —  covenant  to  repair.]     Where  premises  are 

affected  by  a  nuisance  at  the  time  of  their  demise,  the  owner  is  liable  for  any 
Injury  occasioned  by  it  to  a  third  person,  even  though  the  negligence  of  the 
tenant  contributed  thereto.  Id. 

In  constructing  a  building,  it  does  not  create  a  nuisance  to  deposit  material* 

therefor  in  the  street,  if  they  are  properly  guarded. 

See  VILLAGE  OF  SHJXECA  FALLS  v.  ZALIXSEI 571 

OBJECTIONS  —  To  judge's  charge  — may  be  first  made  on  appeal,  when. 

See  LATTIMER  v.  HILL 171 

OBSTRUCTION  —  Of  streets  —  License  from  corporation  when  presumed  — 
Injury  to  traveler —  liability  of  party  causing  —  bound  by  judgment  against  cor- 
pvration. 

See  VILLAGE  OF  SBNBCA  FALLS  v.  ZALINHKI 571 

OFFICE  —  Salary  —  action  for  by  one  vnlaifffully  kept  out  of  offlee  —  liability  of 
city  for  payment. 

See  DOLAN  v.  MAYOR  ....  440 

OFFICEB  —  yo  appropriation  to  pay  Hilary  —  employment  thenqftor  in  viola- 
Hon  of  lam — action  for  salary  not  maintainable. 

See  DUNPHY  r.  MAYOR 490 


692  INDEX. 


ORDER  —  Entry  of.}  If  a  party  who  is  entitled  to  enter  an  order  fails  to 
do  so  for  twenty-four  hours  after  the  decision  has  been  made,  any  party 
interested  may  have  it  drawn  up  and  entered. 

SM  MATTER  OF  RHINEBEOK  AND  CONN.  R.  R.  Co 84 

OVERSEER  OF  THE  POOR  —  In  prosecution  by  third  person  for  violation 
of  excise  law  under  chap.  820,  laws  of  1873 — has  no  poicer  to  consent  to  its  discon- 
tinuance, without  the  consent  of  the  person  by  whom  it  was  commenced. 

See  RECORD  v.  MESSENGER 388 

OWNER  —  Title  of,  when  not  affected  under  chap.  489,  Laws  of  1873  —  by 
reason  of  material*  furnished  to  vendee  in  possession  under  executory  contract. 

See  CRAIG  v.  SWINBRTON 144 

FAROL  CONTRACT —  When  not  merged  in  subsequent  written  contract  — 
Bill  of  lading.]  Plaintiff  delivered  a  quantity  of  wool  to  the  defendant  in 
pursuance  of,  and  relying  upon,  a  parol  contract  that  it  should  he  shipped 
within  two  weeks;  afterwards,  and  upon  the  same  day,  receipts  were  given 
to  him  by  which  defendant  was  exempted  from  all  liability  arising  from 
delay;  plaintiff  did  not  examine  the  receipts,  except  to  see  that  the  weights 
were  correct,  until  the  next  day,  nor  did  he  discover  the  condition  until  that 
time.  The  wool  was  not  shipped  for  two  months,  by  which  time  the  price 
had  declined  nearly  thirty  cents  per  pound.  In  au  action  to  recover  the 
damages  occasioned  by  the  delay,  held,  that  the  parol  agreement  was  not 
merged  in  the  receipts,  and  that  the  plaintiff  was  entitled  to  recover. 

HILL  v.  SYRACUSE,  B.  AND  N.  Y.  R.  R.  Co 296 

PARTITION  —  Of  personal  property  —  Sale  of  vessel,  owned  by  tenants  in  com- 
mon—  power  of  Supreme.  Court  to  direct.}  1.  Where  a  vessel  is  owned,  in 
unequal  proportions,  by  several  persons,  who  cannot  agree  upon  the  sale  or 
for  the  working  of  it,  the  Supreme  Court  of  this  State  has  jurisdiction  over 
an  action  brought  by  one  owner  to  procure  the  appointment  of  a  receiver, 
the  sale  of  the  vessel,  and  the  division  of  the  proceeds  among  the  owners 
thereof.  ANDREWS  v.  BETTS 823 

2.  Jurisdiction  of  admiralty  courts.}     Semble-,  that  the  admiralty  courts 

do  not  exercise  jurisdiction  to  order  the  sale  of  a  vessel  owned  by  tenants 
in  common,  except  in  those  cases  in  which  the  opposing  interests  are 
equal.  Id. 

PARTNERS  —  Action  by  one  against  another,  but  not  against  all — when 
maintainable.}  1.  Although  the  partnership  relation  may  exist  between 
parties,  the  court  has  jurisdiction  to  entertain  a  suit  at  law,  brought  by  one 
against  only  one  of  the  several  other  partners  for  damages,  where  the  action 
involves  an  inquiry  only  with  respect  to  the  damages  which  the  plaintiff 
has  sustained,  solely  because  of  an  alleged  breach  of  the  partnership  agree- 
ment by  the  defendant.  WILLS  v.  SIMMONDS 189 

2.   Necessary  parties.}    Where  the  particular  controversy  can  be  com- 
pletely determined  without  prejudice  to  the  rights  of  the  parties  not  made 
defendants,  they  are  not  necessary  parties  thereto.     Id. 

3.  Contract  —  refusal  to  perform  —  creates  present  breach  of.]     Where 

parties  who  were  bound  by  an  agreement  to  accept  certain  bills  of  exchange 
to  pay  for  goods  purchased,  declare  in  advance  that  they  will  not  do  so,  such 
declaration  of  their  intention  not  to  perform  their  contract,  is  a  breach  thereof, 
and  upon  the  occurrence  of  the  breach  a  cause  of  action  exists  at  once 
against  them,  whether  the  goods  were  at  hand  and  delivered  or  to  arrive,  the 
damages  therefor  depending  upon  the  facts  to   be  established  upon  the 
trial.     Id. 

4.  Accounting — Surviving  partner  — Different  causes  of  action  —  Joinder 

of  administrator   and  heirs.]    In  an    action    by  the  administratrix  of   A. 
against  the  administratrix  of  B.  for  an   accounting  in  respect  to  a  part- 
nership existing  between  A..   B.  and   C. ,  alleging^that   after  the  death   <•' 
A.  the  partnership  was  continued  by  B.  and  C.,  as  surviving  partners,  for 
a  v.ort  period,  when  B.  purchased  the  interest  of  C.  with  partnership  effects, 


INDEX.  693 

PABTNEBS  —  Continued,.  rAM> 

and  thereafter  continued  the  business  as  sole  surviving  partner  unti.  his 
death;  and  that  after  the  death  of  B.,  his  widow  and  administratrix,  the 
defendant  (who  had  since  married  one  Collier)  carried  on  the  same  business 
with  the  partnership  capital  and  effects,  aud  that  no  accounting  of  the  inter- 
ests of  A.,  had  ever  been  rendered  to  the  plaintiff,  who  was  his  widow  aud 
administratrix;  that  the  other  defendants  were  the  children  of  B.  and  made 
defendants  on  the  ground  of  a  partial  distribution  of  their  father's  estate  to 
them;  and  that  some  of  the  real  estate  which  descended  to  them,  as  heirs  of 
their  father,  was  in  fact  purchased  wilh  the  funds  of  the  partnership  afore- 
said, and  so  constituted  a  part  of  the  assets  thereof:  on  demurrer  to  the  com- 
plaint by  the  defendant  Collier,  administratrix,  interposed  on  the  ground 
that  the  facts  stated  in  the  first  cause  oi'  action  did  not  constitute  a  cause 
of  action  against  her,  and  that  several  causes  of  action  had  been  improperly 
united  in  the  complaint : 

Held,  that  the  facts  stated  made  out  a  case  within  the  equitable  jurisdic- 
tion of  the  court. 

That  a  surviving  partner,  though  he  has  a  legal  right  to  the  partnership 
effects,  yet,  in  equity,  is  considered  a  trustee  to  pay  the  debts  and  dispose  of 
the  effects  for  the  benefit  of  himself,  and  the  estate  of  his  deceased  partner. 

That  the  capital  of  the  deceased  partner  is  to  be  treated  as  trust  property; 
and  when  it  has  been  employed  in  carrying  on  the  business  of  the  concern, 
so  much  of  the  subsequent  profits  as  can  be  attributed  to  the  employment  of 
such  capital  must  be  accounted  for  by  those  who  have  used  it;  and  on  this 
principle  the  defendant  Collier  was  liable,  as  administratrix,  to  account  for 
the  qua»i  breach  of  trust  of  B.,  her  intestate,  and  hence  a  cause  of  action 
was  correctly  stated  against  her. 

That  there  was  really  but  one  cause  of  action  set  out  in  the  complaint, 
namely,  the  right  to  an  accounting  concerning  the  affairs  of  the  partnership 
mentioned;  and  no  distinct  cause  of  action  set  forth  against  the  defendants 
other  than  Collier,  the  administratrix;  but  in  such  an  action  it  was  proper 
to  make  all  persons  parties  who  were  interested  in  the  subject-matter  of  the 
accounting,  although  the  interests  of  the  several  defendants  did  not  accrue  in 
the  same  right.  SKIDMOBB  v.  COLLIER 50 

PARTNERSHIP —  What  constitute*  —  agreement  simply  to  share  profit*.] 
Plaintiff  and  defendant  entered  into  an  agreement,  whereby  plaintiff  was  to 
furnish  the  capital  to  carry  on  the  business  of  manufacturing  and  selling 
wooden  ware,  the  latter  to  receive  one-third  and  the  former  two-thirds  of 
the  profits,  nothing  being  said  in  the  agreement  as  to  any  possible  losses. 
Held,  that  the  mere  fact  that  no  provision  was  made  in  the  agreement,  whereby 
the  defendant  was  bound  to  pay  his  proportion  of  the  losses,  did  not  prevent 
the  parties  to  the  agreement  from  becoming  partners  inter  sese. 

MUNRO  0.  WHITMAN 568 

PARTIES  —  Partners — action  by  one  against  another,  but  not  against  all— 
when  maintainable. 

See  WILLS  v.  SIMMONDS 189 

PARTY  — •  To  transaction  —  cannot  testify  a*  to  intention  with  which  act  was 
done  —  as  agairwt  the  legal  representatives  of  other  party  —  Code,  %  399. 

See  TOOLBY  v.  BACON 178 

PARTY  AGGRIEVED  —  Who  is,  under  chap.  338  of  1858—  Assessment  — 
purchase  of  property  after  confirmation  of. 

See  MATTER  OF  MOORE 518 

PARTY  TO  ACTION  —  A  cestui  que  trust  is  not  a  necessary  party  to  an 
i^lion,  to  enforce  a  claim  for  termte*  rendered  to  a  (rust  estate. 

See  STANTON  D.  KINO 4 

PARTY  WALL  —  Right  lo  use  of — chose  in  action,  when.]  1.  B.  erected 
on  the  land  of  his  wife  a  building  with  his  own  money,  and  before  the  erec- 
tion thereof  agreed  with  C.  to  place  one-half  of  one  of  the  walls  thereof  on 
her  land,  under  an  agreement  that  she  should,  when  the  wall  was  used  by 
her,  pay  for  so  much  thereof  as  she  should  use.  The  Agreement  was 
between  B.  and  C.  personally,  and  not  made  by  B.  for  or  on  behalf  of  his  wife. 


694  INDEX. 

PARTY  WALL  —  Continued.  r AM. 

Held,  that  such  agreement  was  a  mere  chose  in  action,  the  right  to  which 
was  in  B. ,  and  not  having  been  transferred  to  his  wife,  could  not  be  trans- 
ferred by  her  to  her  grantees.  MCDONNELL  c.  CULVER 155 

3. Covenant  by  grantee  to  <wxnrne  agreement  an  to  —  similar  in  principle 

to  (vtsumption  of  mortgage.}  Where  a  deed  was  executed  and  delivered,  con- 
veying premises  subject  to  a  party  wall  agreement,  made  between  the  grantor 
and  the  owner  of  adjoining  premises:  Held,  that,  the  burden  was,  by  express 
covenant,  transferred  to  the  grantee,  and  he  assumed  it,  and  the  covenant  to 
pay  for  the  party  wall,  when  used,  became  united  with,  and  formed  part 
of  the  consideration  for  which  the  land  was  parted  with.  That  there  was 
no  difference  between  a  covenant  to  assume  an  obligation  of  a  party  wall 
agreement,  and  one  assuming  the  payment  of  a  mortgage. 

STEWA.RT  c.  ALDRICH 241 

PATENT  BIGHT  —  Sale  of —  consideration,  for,  a  promissory  note  —  Stat- 
ute of  Pennsylvania  —  Law  of  another  State  —  knowledge  of  existence  of —  ques- 
tion of  fact,  not  of  law. 

See  PALMER  v.  MINAK 848 

PAYMENT  —  Certificate  —  when  prerequisite  of —  Unreasonable  refusal  to 
give — effect  of. 

See  B.VNCKER  v.  MAYOR 409 

Under  protest,  of  assessment  —  Voluntary  payment —  right  to  recover 

amount  paid. 

See  PEYSER  v.  MAYOR 41S 

PENALTY  —  Time  of  delivery.  ]  Where  a  contract  provided,  that  "  all  saws 
not  taken  by  you  in  sixty  days  from  completion  of  their  manufacture  we  shall 
charge  thereon  interest  at  the  rate  of  ten  per  cent  per  annum."  Held,  that 
this  meant  that  if  for  any  reason  defendant  was  not  in  readiness  to  receive  the 
saws  within  sixty  days,  and  their  delivery  was  thereby  postponed  beyond 
that  period,  he  should  pay  ten  per  cent  for  the  period  that  might  elapse 
between  the  expiration  of  sixty  days  from  manufacture  and  the  time  of 
delivery.  MCPARLIN  v.  BOYNTON 449 

PENNSYLVANIA  STATUTE  —  In  reference  to  promissory  note  given  on 
tale  of  patent  rignt. 

See  PALMER  v.  MINAR 349 

PERJURY  —  In  a  former  suit,  not  ground  for  bringing  another  action,  to 
retry  the  same  issues —  remedy. 

See  Ross  v.  WOOD 185 

PERSONAL  PROPERTY  —  Partition  of  vessel  —  Admiralty  courts. 

See  ANDREWS  v.  BETTS 321 

PHYSICIAN  —  Fees  — for  examination,  as  to  pregnancy  of  widow  —  quasi 
officer*  of  court — claim  charged  on  estate,  not  affected  by  discontinuance  of 
action  —  Surrogate  —  decree  to  pay  claims  charged  on  estate  by  Supreme  Court  — 
although  not  directly  within  his  statutory  powers  —  upheld.}  In  an  action  in  the 
Supreme  Court  to  set  aside  a  will  an  order  was  made,  with  the 'consent  of  all 
parties,  appointing  two  physicians  to  inquire  into  the  pregnancy  of  the  widow 
of  deceased,  and  directing  that  their  compensation  be  allowed  as  a  charge 
against  the  estate.  After  the  physicians  had  discharged  their  duties,  and  pend- 
ing a  reference  to  ascertain  the  value  thereof  and  before  the  report  thereon,  the 
action  was  discontinued  without  notice  to  the  physicians,  or  the  court  being 
advised  of  such  outstanding  proceedings.  The  referee's  report  was  subse- 
quently filed  awarding  them  $1,000,  and  an  order  made  and  entered  awarding 
them  such  sum,  with  eighty  dollars  expenses  of  the  reference,  and  directing 
that  said  sums  be  a  lien  and  charge  upon  the  estate.  On  petition  to  the 
surrogate  an  order  was  made  by  him,  directing  the  administrator  of  the  estate 
of  the  deceased  to  pay  the  amount  of  such  order. 

Held,  that  the  physicians  in  this  case  were  quasi  officers  of  the  court,  and 
it  not  being  intended  that  they  should  be  dependent  upon  the  contingency  of 
an  action  for  their  compensation,  it  was  made  a  charge  in  anticipation  upon 


INDEX.  695 

PHYSICIAN  —  Continued.  PAM 

the  estate.  That  such  order  having  been  made  with  the  consent  of  all  parties, 
the  physicians  became  quasi  parties  to  the  action  in  whose  favor  a  decree  had 
been  entered,  and  the  discontinuance  as  to  them  without  notice  of  the  pro- 
ceedings therefor  was  a  nullity. 

That  their  claim  was  not  a  debt  or  demand  against  the  testator,  or  the  exec- 
utor or  personal  representative  of  the  deceased;  it  was  therefore  questiona- 
ble if  the  surrogate  could  decree  the  payment  thereof;  yet  as  the  order  of  the 
surrogate  was  predicated  on  the  decree  of  the  Supreme  Court,  for  the  pay- 
ment of  services  ordered  by  it,  necessary  in  the  administration  of  justice, 
which  expenses  should  be  paid  out  of  the  estate,  and  could,  by  the  Supreme 
Court,  have  been  directly  ordered  by  it  to  be  paid  out  of  the  funds  in  the 
hands  of  the  administrator,  it  was  proper,  as  matter  of  form,  to  reach  the 
funds  of  the  estate  in  the  hands  of  the  special  administrator  appointed  by 
him,  and  would  not  be  disturbed.  ROLLWAGBN  v.  POWELL 210 

PLACE  OF  TRIAL  —  Action  for  ants  done  virtute  offlcu.]  Of  action  against 
public  officer,  for  acts  done  virtute  qfficii,  must  be  brought,  so  far  as  he  is 
concerned,  in  the  county  where  the  cause  of  action,  or  some  part  thereof, 
arose.  PEOPLE  v.  KENGSLEY 288 

PLEADINGS  —  Complaint  —  on  note  signed  "J.  8.  McGlure,  agent."]  1.  A 
complaint  alleged  that  the  defendant,  by  J.  S.  McClure,  made  and  delivered 
her  promissory  note,  in  writing,  setting  forth  a  copy  of  the  note,  signed  J.  8. 
McClure,  agent,  and  alleging  that  the  consideration  of  the  note  was  goods 
sold  to  the  defendant.  Held,  that  the  complaint  stated  facts  sufficient  to 
constitute  a  cause  of  action.  That,  under  the  allegation  that  the  defendant 
made  and  delivered  her  promissory  note,  it  would  be  competent  to  show  that 
the  person  signing  the  note  was  duly  authorized  by  her  so  to  do. 

MOORE  v.  McCLUBE *. 567 

2.  Demurrer.]    A  complaint  alleged  a  partnership  between  plaintiff 

and  defendant;  its  dissolution;  an  accounting;  a  certain  sum  found  due 
plaintiff;  a  demand  therefor  an<l  refusal  to  pay,  and  asked  judgment  for 
the  amount.     Held,  not  to  be  demurrable,  although  no  promise  to  pay  the 
amount  was  alleered.    MACKKY  v.  AUKH 180 

3.  Relief.]    It  is  not  sufficient  to  show  that  the  relief  upon  certain 

facts  could  not  be  that  subsequently  asked  for  by  the  complaint  ;  it  must  be 
shown  that,  upon  the  facts  alleged,  the  plaintiff  would  not  be  entitled  to 
any  relief  at  the  hands  of  the  court,  for  the  legal  or  equitable  powers  of  the 
court  are  not  necessarily  controlled  by  the  prayer  for  relie!  which  the  plain- 
tiff adopts,  although  the  relief,  where  no  answer  is  interposed,  cannot  go 
beyond  such  prayer.     Id. 

4.  A  cause  of  action  in  the  Code  means  any  cause  of  action.    Id. 

Not  evidence,  beyond  portion  admitted  by  the  answer,  to  go  to  the  jury. 

See  DREW  v.  ANDREWS 28 

Irrelevant  and  scandalous  matter  in — responsibility  for  — costs  imposed 

on  attorney 

See  Me  VET  v.  CANTRELL  and  TADDIKBN  v.  CANTRELU 58* 

POLICY  OF  INSURANCE  —  Power  of  agent— ratification  of  acts  of,  by 
company.]  1.  A  policy  of  insurance  was  issuea  to  the  plaintiffs  intestate,  upon 
which  was  printed  a  notice  that  the  agent  had  no  authority  to  receive  any 
premium  after  the  date  of  its  becoming  due,  without  special  permission  from 
the  officers  of  the  company.  On  the  twenty-sixth  of  July,  the  agent  wrote 
to  the  deceased  stating  that  the  amount  or  the  premium  due  July  twelfth 
was  seven  dollars  anrt  eijrhty-eight  cenKs,  and  that  the  same  might  be  sent  by 
mall.  Between  the  twenty-sixth  and  thirtieth  of  July  this  amonnt  was  sent 
to  the  agent,  who  acknowledged  receipt  thereof  on  the  thirtieth,  and  sent  the 
renewal  receipt.  The  insured  died  on  the  first  day  of  August.  The  com 
pany  received  the  premium,  and  never  returned  or  offered  to  return  the  same. 
In  an  action  upon  the  policy  the  company  claimed  that  the  agent  had  no 
authority  to  receive  the  premium.  Upon  the  trial  no  evidence  was  given 
M  to  the  authority  of  the  agent.  Held,  that  the  acts  of  the  agent  ana  the 


696  INDEX. 

POLICY  OP  mSUBANCE— Gmtffttwd.                                                     rAM. 
company,  in  accepting  and  retaining  the  premium,  were  such  as  to  authorize 
the  finding  that  he  was  authorized  to  receive  the  same  and  to  deliver  the 
renewal  receipt  therefor.    SHAFT  ».  PHCENIX  Mur.  LIFE  INS.  Co 632 

2.  Duty  of  insured.]    Under  the  circumstances,  it  was  not  incumbent 

upon  the  insured  to  apply  himself  to  the  company,  in  order  to  ascertain 
whether  it  had  authorized  the  agent  to  receive  the  premium  and  to  deliver 
the  renewal  receipt  therefor,  id. 

8. Married  iceman.]  In  an  action  by  a  widow  to  recovert  he  amount  of 

a  policy  issued  to  her  upon  the  life  of  her  husband,  which  has,  prior  to  his 
death,  been  assigned  to  the  defendant  upon  his  paying  to  her  the  sum  of 
f  2,000,  a  court  of  equity  will  not  decree  the  restitution  of  such  policy  to  her 
and  the  cancellation  of  the  assignment,  without  requiring  her  to  restore  the 
money  so  received  by  her.  (Per  SMITH,  J.)  WILSON  ».  LA  WHENCE 593 

POSSESSION  —  Trespass  —action  of.]  Although,  «»  a  general  rule,  tres- 
pass quare  clausum  fregit  can  only  be  maintained  by  one  in  actual  possession 
of  the  premises  when  the  injury  is  committed,  yet  in  the  case  of  a  disseisin 
the  disseisee,  after  he  has  regained  possession,  may  maintain  his  action 
against  the  disseisor  for  acts  intermediate  the  disseisin  and  re-entry. 

HALEY  v.  WHEELER 569 

Under  lease  —  defense  to  action  upon  —  Quantum  meruit. 

See  McKtNNEY  t>.  HOLT 336 

PRACTICE  —  Perjury  in  a  former  suit.]  1.  Issues  tried  in  a  former  suit  can- 
not be  retried  in  another  between  the  same  parties,  upon  allegations  that  one  of 
the  parties  thereto,  and  her  witnesses,  conspired  together  to  and  did  commit 
perjury  in  the  former,  by  means  of  which  a  verdict  and  judgment  were  had 
against  the  present  plaintiff,  then  defendant.  Ross  v.  WOOD. 185 

2.  Remedy.]    The  proper  course  for  the  aggrieved  party  to  pursue  is  to 

apply  for  relief  in  the  action  itself,  by  a  motion  for  a  new  trial  on  the  ground 
of  surprise  or  newly  discovered  evidence,  or  other  matter  out  of  which  his  claim 
for  relief  arises.  Id. 

8.  Orov.ndfor  bringing  anotJier  action,  to  retry  tJie  same  issues.]    To  obtain 

relief  by  an  independent  action  in  a  court  of  equity  against  a  judgment  obtained 
through  fraud  and  crime,  it  must  appear  that  the  party  had  no  remedy  at  law 
in  the  action,  and  that  there  had  been  no  fault  or  negligence  on  his  part.  A 
failure  to  promptly  apply  for  appropriate  relief  in  the  action  would  be  negli- 
gence; and  that  an  application  had  been  made  without  success,  would  afford 
no  ground  for  a  substantial  review  of  such  action,  in  another  suit  in  a  different 
court.  Id. 

4.   Counter-claim — Separate  action  brought  therefor.]    A  party,  except 

in  cases  commenced  in  a  Justice's  Court,  having  a  demand  against  another  can 
maintain  an  action  therefor,  although  at  the  time  an  action  is  pending  against 
him  by  the  same  party,  wherein  he  could  have  set  up  such  demand  as  a  counter- 
claim. INSLEE  t>.  HAMPTON 230 

5. Entry  of  order.]    If  a  party  who  is  entitled  to  enter  an  ordei  fails 

to  do  so  for  twenty-four  hours  after  "the  decision  has  been  made,  any  party 
interested  may  have  it  drawn  up  and  entered. 

MATTER  OF  RHINEBF.CK  AND  CONN.  R.  R.  Co , 34 

6. Wfien  exceptions  first  heard  at  General  Term.]  Where  the  complaint 

is  dismissed  at  the  Circuit,  the  court  may  direct  the  plaintiff's  exception  to 
such  disposition  of  the  case  to  be  heard  in  the  first  instance  at  the  General 
Term,  and  that  judgment  be  suspended  in  the  mean  time. 

Hoagland  v.  Miller  (16  Abb.  Pr.,  103)  not  followed.     BROWN  v.  CONGER.  . .  625 

7.  Pirst  department — Motion  to  confirm  referees  report — Special  Terms 

at  which  heard.]  Where,  upon  the  trial  of  an  equity  case  at  the  Special 
Term  in  the  first  district  an  interlocutory  decree  is  made  directing  a  refer- 
ence for  certain  purposes,  a  motion  to  confirm  the  report  must  be  made  at  a 
Special  Term  for  enumerated  motions,  and  not  at  a  Secial  Term  and  chambers 
lor  non-enumerated  motions  only. 

EMPIRE  B.  AND  M.  L.  Assoc.  v.  STEVENS.  .          515 


INDEX.  697 

PRACTICE  —  Continued. 

TA.O3. 

.  8-  -  Inquest—  foreclosure.]  In  an  action  to  foreclose  a  moitgaee  an 
inquest  taken  by  the  plaintiff  upon  defendant's  failure  to  file  an  affidavit  of 
merits  is  irregular,  and  a  judgment  entered  thereon  will  be  set  aside 

DEVLIN  v.  SHANNON  ...................................  ^  531 

-  County  Court  —  on  appeal  to,  questions  raised  in  Justice's  Court  as  to 
regularity,  etc.,  must  be  examined. 
v.  REED 


Mechanic's  lien—  bill  of  particulars  —  verification  of. 
See  GKEYC.  VORHIS 


-  Interpleader—  Code,  §122  —  Supplemental  complaint. 
See  WILSON  v.  LAWRENCE 


Irrelevant  'matter  —  striking  out  of  —  discretionary  —  when  improper 
See  TOWN  OF  ESSEX  v.  N.  Y.  AND  CANADA  R  R.  Co 


-  Effect  on  judgment  against  an  infant,  of  guardian  ad  litem's  neglect  to 
plead  infancy. 

See  PHILLIPS  v.  DUSENBERBY  .................  ;  ..................  343 

-  Joint  debtors  —  death  of  one  during  pendency  of  action  —  revival  of  against 
hi»  representatives. 

See  MASTER  v.  BLACKWKLL  ......................................  318 

-  Examination  of  party  before  trial  —  attorney  —  entitled  to  notice—  Code, 
£  391. 

See  PLUMMER  v.  BELDEN  .......................................  468 

—  —  Malicious  prosecution  —  entry  of  nolle  proxequi  with  defendant's  assent^ 
a  sufficient  end  of  the  prosecution  to  support  an  action. 

See  MOULTON  v.  BBECHER  .....................................  100 

—  -  Misjoinder  of  causes  of  action  —  mechanic's  lien  —  foreclosure  of  —fraud- 
ulent grantees  of  premises  —  parties  defendant. 

See  TISDALE  v.  MOORE  ..........................................     19 

-  Immaterial  averments  —  in  complaint. 

See  WAGGONER  v.  MILLINGTON  ..................................  143 

-  Settlement  of  case  presenting  only  questions  of  law  —  insertion  of  all  the 
evidence  in,  not  proper  —  Statement  of  facts  established  by  the  evidence  —  Substi- 
tuted for  t/ie  evidence,  wJien. 

See  MARCKWALD  v.  OCEANIC  STEAM  NAV.  Co  ......................  547 

-  Surrogate  —  power  of,  to  distribute  surplus  on  sale  of  lands. 

See  ARKOWSMITH  v.  ARROWSMITH  ................................  608 

—  Failure  to  serve  bill  of  particulars  with  notice,  as  required  by  §  10, 
chap.  402,  Laws  of  1834  —  waived  by  service  of  answer  . 

See  NOBCOTT  o.  FIRST  BAPTIST  CHORCH  op  ROME  .................  639 

-  Report  of  referee  on  conflicting  evidence  —  findings  that  evidence  "leave* 
the  mind  in  doubt,  "  error  —  mistrial. 

See  BRADLEY  v.  MCLAUGHLIN  ....................................  645 

PREGNANCY  —  Of  widow  —  physicians'  fetsfor  examination  —  a  charge  on 
the  estate. 

See  ROLLWAGEN  v.  POWELL  .....................................  210 

PRESUMPTION  —  Concubinage.}  1.  A  cohabitation  illicit  in  its  origin,  is 
presumed  to  continue  to  be  of  that  character  unless  the  contrary  be  proved, 
and  cannot  be  transformed  into  matrimony  by  evidence  which  falls  short  of 
establishing  the  fact  of  an  actual  contract  of  marriage.  FOSTER  v.  HAWLEY,  68 

2.  --  Where  a  married  woman,  who  has  a  separate  estate  and  carries  on 
business  in  relation  thereto,  keeping  a  bank  account  in  her  own  name,  draws 
a  check  upon  such  account,  payable  at  a  future  day,  on  which  she  borrows 
money,  the  law  presumes,  in  the  absence  of  evidence  to  the  contrary,  that 
buch  money  was  borrowed  for  the  benefit  of  her  separate  estate,  and  holds 
ber  liable  therefor.     NASH  v.  MITCHELL  ..................................  471 

3.  -  In  favor  of  referee's  report.']    When  the  uncontradicted  evidence 
establishes  the  existence  of  a  fact,  essential  to  the  plaintiff's  right  to  recover, 

HUN—  VOL.  VIII.         88 


698  INDEX. 

PRESUMPTION  —  Continued. 

it  will  I 'f  presumed,  in  support  of  a  judgment  in  his  favor,  that  such  fact  was 
found  by  the  referee,  though  not  so  stated  in  his  report. 

B ANCKKR  v.  MAYOR 409 

That  the  face  of  a  promissory  is  its  value. 

See  LOOMIS  v.  MOWRY 311 

That  services  rendered  by  one  relative  for  another  are  gratuitous  —  degree 

of  consanguinity  necessary  to  create. 

tiee  GALLAGHER  ».  VOUOHT 87 

PRINCIPAL  AND  AGENT  —  Promissory  note  — signed  J.  8.  Me  Clare, 
agent.}  In  an  action  upon  a  note,  the  fact  that  the  name  of  the  defendant 
did  not  appear  upon  the  face  of  the  note,  would  not  prevent  the  plaintiff 
.roru  showing  that  the  defendant  was  bound  thereby;  it  would  be  competent 
under  an  allegation  that  the  defendant  made  and  delivered  the  note,  to  show 
that  the  person  signing  the  note  was  duly  authorized  by  defendant  so  to  do. 
MOORE  v.  McCLURK 557 

Agency  —  revoked  by  death  of  principal. 

See  HKLMKK  v.  ST.  JOHN 166 

PRINCIPAL  AND  SURETY  —  Mortgage  —  Agreement  to  extend  between 
holder  and  grantee  covenanting  to  assume,  made  without  consent  of  grantor 
(mortgagor)  —  discharges  mortgagor.}  Where  a  party  by  deed  assumes  the 
payment  ol  a  mortgage  executed  by  his  grantor,  he  becomes  the  principal 
debtor,  and  the  relation  created  between  him  and  his  grantor  is  that  of  princi- 
pal and  surety.  Such  deed  is  notice  to  a  subsequent  holder  of  the  mortgage 
of  this  relation,  and  an  extension  of  the  time  of  payment  by  such  holder, 
even  with  the  express  understanding  that  the  bond  and  mortgage  shall 
remain,  in  every  other  respect,  unaffected  by  suid  agreement,  when  made 
without  the  consent  of  such  grantor,  discharges  him  from  all  liability  to 
the  holder  of  the  mortgage.  CALVO  v.  DAVIES 223 

PRISONER'S  BELIEF  —  In  his  autfwrity  to  xign  paper  — forgery. ]  Where 
a  person  is  indicted  for  affixing  the  name  of  another  person  to  a  written 
instrument  without  authority,  he  is  entitled  to  an  acquittal  if  it  appear  that 
he  had  fair  grounds  for  believing  that  he  had  such  authority,  even  though 
he  had  not.  PARMELEK  v.  PEOPLE  623 

PROFITS  —  Agreement  to  share  —  when  it  creates  a  partnership. 

See  MTTNKO  v.  WHITMAN 55i? 

PROMISSORY  NOTE—  Duty  of  purchaser  —  notice,  sufficient  to  require 
inquiry.]  1.  In  an  action  by  the  plaintiff,  a  bona  fide  purchaser,  before 
maturity,  of  the  following  note : 

GUILFORD,  Nov.  29,  1870. 

For  one  Hinckley  knitting  machine  warranted,  I  promise  to  pay  J.  H. 
Wells  or  bearer  thirty  dollars,  one  year  from  date  with  use. 

DANIEL  JOHNSON. 

the  defendant  offered  to  prove  a  parol  warranty  of  the  machine  and  breach 
thereof,  and  claimed  to  recoup  damages  therefor.  Held,  that  the  evidence 
was  inadmissible.  MABIE  v.  JOHNSON 809 

2.  Patent  right  —  sale  of ,  consideration  foi — Statute  of  Pennsylvania.] 

Section  3  of  the  act  of  April  12,  1872,  passed  by  the  legislature  of  Pennsyl- 
vania, provides,  that  whenever  a  promissory  note  is  given  in  consideration 
of  the  sale  of  a  patent  right,  "  the  words  '  given  for  a  patent  right '  shall  be 
prominently  and  legibly  written  or  printed  on  the  face  of  such  note,    *    *    * 
and  such  note  or  instrument  in  the  hands  of  any  purchaser  or  holder  shall 
be  subject  to  the  same  defenses  as  in  the  hands  of  the  original  owner  or 
holder."    Held,  that  the  words,  "such note  or  instrument,"  in  the  last  clause 
of  the  sentence,  mean  a  note  or  instrument  having  on  its  face  the  words 
"  given  for  a  patent  right,"  and  do  not  include  one  which,  although  given 
ipon  the  sale  of  a  patent  right,  does  not  bear  those  words. 

PALMER  v.  MINAR 848 

3.  Law  of  another  State  —  knowledge  of  existence  of — a  question  of 


INDEX.  699 

PROMISSORY  NOTE  -  Continue*  FAai 

fact,  not  of  law.]  This  action  was  brought  against  the  maker  of  a  promis- 
sory note,  purchased  by  the  plaintiff  (who  knew  that  the  original  considera- 
tion of  the  note  was  the  sale  of  a  patent  right,  but  not  the  Pennsylvania  law 
upon  that  subject),  in  this  State,  before  maturity  and  in  good  faith.  The 
defendant  alleged  that  the  note  having  been  given  in  the  State  of  Pennsyl- 
vania upon  the  sale  of  a  patent  right,  and  not  having  the  words  "given  for 
a  patent  right "  upon  its  face,  was  void  under  section  4  of  the  above  act, 
which  declares  it  to  be  a  misdemeanor  for  any  person  knowing  the  con- 
sideration of  a  note  to  be  the  sale  of  a  patent  right,  to  "take,  sell  or 
transfer  "  the  same  unless  it  has  the  words  "given  for  a  patent  right "  upon 
its  face. 

Held  (1),  that  the  act  did  not  in  terms  forbid  the  making  of  such  a  note, 
but  only  its  sale  or  transfer;  (2),  that  the  statute  did  not  affect  the  validity  of 
such  a  note  when  purchased  in  this  State  before  maturity  and  in  good  faith; 
(3),  that  where  a  purchaser  in  this  State  did  not  know  of  the  existence  of  the 
said  statute,  his  right  to  recover  upon  the  note  was  not  affected  by  the  fact 
that  he  knew  that  it  was  given  upon  the  sale  of  a  patent  right.  Id. 

4.  Garnishment   procees.]    The  laws  of  Florida  provide  that  in  any 

action  commenced  therein  a  notice  of  garnishment  may  be  issued  to  any 
person  indebted  to  the  defendant  in  said  action,  requiring  him  to  state  the 
amount  of  his  indebtedness  at  the  time  of  the  issuing  of  the  summons,  and 
authorize  a  judgment  to  be  entered  in  favor  of  the  plaintiff  for  the  amount  of 
such  indebtedness,  if  it,  be  admitted,  and  an  execution  to  be  issued  thereon. 
Held,  that  these  provisions  included  all  debts  without  regard  to  the  form  in 
which  they  were  contracted,  and  that  they  were  applicable  to  negotiable 
paper.     SIMON  v,  HUOT 878 

5.  Effect  of,  on  rights  of  bona  fide  purchaser.}    Accordingly  where,  in  an 

action  upon  a  promissory  note,  made  and  payable  in  that  State,  brought  by 
one  who  had  purchased  the  same  in  this  State,  without  notice  and  for  full 
value,  it  appeared  that  while  the  payee  still  owned  the  note  an  action  had 
been  commenced  against  him,  in  which,   after  due  service  of  notice  of 
garnishment  on  the  makers,  judgment  had  been  entered  against  them  for  the 
amount  thereof,  and  their  property  had  been  seized  under  an  execution  issued 
thereon,  held,  that  the  court  erred  in  directing  a  verdict  for  the  plaintiff.     Id. 

6.  Surrender   and    cancellation  of  note,  not  paid   in  full — no  right 

of  action  exsis  thereafter  for  amount  unpaid.}     Where  a  creditor  surrenders 
to  his  debtor  an  obligation  for  the  purpose  of  cancellation,  and  the  latter,  in 
pursuance  of  such  agreement,  cancels  and  destroys  the  same,  no  action  can 
thereafter  be  maintained  thereon  by  the  creditor,  in  the  absence  of  any  fraud, 
mistake  or  illegality  in  the  transaction,  even  though  the  amount  paid  by  the 
debtor  was  less  than  the  amount  due  upon  the  obligation  surrendered. 

KENT  v.  REYNOLDS 889 

Obtained  by  fraudulent  representations — measure  of  damages  —  where 

totes  are  not  transferred  before  maturity. 

See  THAYER  v.  MANLEY 880 

Invalid  in  hands  of  payee  —  bona  fide  purchaser  of —  recovery  by,  restricted 

to  amount  paid  by  him. 

See  TODD  v.  SHELBOURNE 610 

Made  by  lunatic  —  action  upon  — burden  of  proof —Inquisition — prima 

facie  evidence  of  unsound  mind. 

See  HICKS  v.  MARSHALL 897 

PROTEST  —  Payment  under  — of  assessment—  Voluntary  payment  — right  to 
recover  amount  paid. 

See  PEYSER  v.  MAYOR 418 

PROXIMATE  CAUSE  —  Of  death— injury  from  riding  on  street  car  — blood 
poisoning. 

See  GINNA  t>.  SECOND  AVENUE  R.  R  Co 4&4 

PUBLIC  CHARITIES  AND  CORRECTION  —  Department  of,  New  York 
-ity  —  can  neither  sue  nor  be  sued. 

Set  N.  Y.  BALANCE  DOCK  Co.  v.  MAYOR 847 


700  INDEX. 

Him. 

PUBLIC  HIGHWAY—  Railroad  — no tice  to  commissioners.}  When  the 
legislature  has  located  a  railroad  on  an  avenue  or  highway  the  necessity  of 
notice  and  agreement  with  the  commissioners  of  highways  is  disposed  oft 

MATTER  OF  PROSPECT  PARK  AND  C.  I.  B  R,  Co W 

PUBLIC  OFFICE  —  Bight  to  remove  from,  vested  in  State  alone. 

See  PEOPLE  EX  REL.  DEMAIIEST  t.  FAIRCHILD 334 

PUBLIC  OFFICES.  —  Acts  done  by  —  tirtute  officti — Venue —  in  action 
against. 

See  PEOPLE  t>.  KINGSLEY 238 

PURCHASER : 

See  VENDOR  AND  PURCHASER. 

QUANTUM  MERUIT  —  Lease  — possession  under  —  of  part  of  premises. 

See  McKiNNEY  t>.  HOLT. 8M 

QUO  WABJ1ANTO  —  Code,  §  432  —  Attorney-General  cannot  be  compelled  to 
bring  action  of.]  1.  The  right  to  remove  one  who  has  unlawfully  intruded  into 
a  public  office  is  vested  in  the  State  alone,  and  its  decision,  as  to  whether  or 
not  an  action  shall  be  brought  to  remove  such  intruder  therefrom,  is  final  and 
cannot  be  reviewed  by  the  courts. 

PEOPLE  EX  REL.  DEMAREST  «.  FAIRCHILD 334 

2. Commissioners  of  excise  —  Several  persons,  claiming  to  constitute  a  board, 

united  as  relators.]  In  an  action  by  the  people  on  the  relation  of  three  per- 
sons, claiming  to  constitute  a  board  of  excise,  against  three  others  whom 
they  allege  have  usurped  the  said  office,  it  is  not  necessatry  to  allege  <>r  prove 
that  any  one  of  the  relators  is  entitled  to  the  office  occupied  or  claimed  by 
any  one  of  the  defendants;  the  object  of  such  action  is  to  determine  which 
set  of  persons  lawfully  compose  or  is  entitled  to  compose  the  board  of 
excise.  PEOPLE  EX  REL.  BABCOCK  v.  MURRAY  577 

RAILROAD  —  Acquisition  of  lands  by —  Chapter  140,  Laws  of  1850.J  1. 
A  railroad  company  presented  its  petition  to  the  Supreme  Court  to  acquire 
title  to  certain  lands.  The  owners  opposed  the  application,  but  the  court 
appointed  commissioners  of  appraisal.  The  commissioners  made  their  report 
to  the  court,  and  on  motion  of  the  company  an  order  was  made  confirming  it 
and  directing  the  amount  of  the  award  to  be  paid  to  the  owners  or  deposited 
to  the  credit  of  their  attorney.  The  company  refused  or  neglected  to  file  the 
papers  or  pay  the  award.  An  order  was  therefore  obtained  by  the  owners 
for  the  company  to  show  cause  why  the  petition,  order  thereon,  report,  and 
order  confirming  it  should  not  be  filed,  and  on  the  return  day  an  order  was 
made  directing  the  filing  of  the  same,  the  payment  of  the  award  in  ten  days, 
or  that  a  precept  issue  to  collect  the  award ;  from  which  order  the  company 
appealed. 

Held,  that  the  recording  of  the  order  of  confirmation  and  payment  of  the 
sum  awarded  would  vest  the  title  to  the  land  in  the  company.  That  the 
recording  of  the  order  was  the  duty  of  the  clerk,  and  the  payment  of  the 
award  the  duty  of  the  company.  That  the  right  of  the  owner  to  have  both 
performed  had  been  adjudged  by  the  court,  and  the  rights  and  obligations 
of  both  parties  had  thereby  become  fixed,  subject  only  to  the  right  of  appeal 
given  by  the  statute,  and  neither  party  could  recede  or  abandon  the  proceed- 
ing without  the  consent  of  the  other. 

MATTER  OF  RUINEBECK  AND  CONN.  R.  R.  Co 34 

2. Chapter  282,  Laws  0/1854.]  By  section  5,  chapter  282,  Laws  of 

1854,  the  court  is  vested  with  power  to  make  all  necessary  orders  and  give 
the  necessary  directions  to  carry  into  effect  the  object  and  intent  of  the 
etatute  (chap.  140,  Laws  of  1850),  and  the  order  appealed  from  came  within 
this  power.  Id. 

3. Entry  of  order  —  when  defeated  party  entitled  to  enter.'}  If  a  party 

who  is  entitled  to  enter  an  order  fails  to  do  so  within  twenty-four  hours  after 
the  decision  has  been  made,  any  party  interested  may  have  it  drawn  up  and 
entered.  Id. 


INDEX.  701 

tt.ATT.-p.OA-n  _  Continued.  rAM. 

4.  --  Eminent  domain  —  Defective  title  —  right  to  perfect  under  chapter  140 
if  1850.]  It  having  been  held  that  the  petitioners,  a  railroad  company, 
obtained  no  title  to  the  lands,  as  against  the  owners  of  the  fee,  by  the  legisla- 
tive permission  to  lav  down  their  tracks  on  a  certain  highway  on  which  they 
had  built  their  road,  orders  made  on  an  application  by  them  for  the  appoint- 
ment of  commissioners  to  assess  the  value  of  the  lands  for  the  purpose  of 
compensating  the  owners  should  be  sustained,  on  the  ground  that  the  case 
comes  within  that  part  of  the  general  railroad  act  (chap.  140,  Laws  of  1850), 
which  permits  a  railroad  company  to  perfect  a  title  found  defective. 

MATTER  OF  PROSPECT  PARK  AND  C.  1.  R.  R.  Co  ......................    30 

6.  -  Public  highway  —  notice  to  conimis»ioiurs  of.  ]  When  the  legislature 
has  located  a  railroad  on  an  avenue  or  highway,  the  necessity  of  notice  and 
agreement  with  the  commissioners  of  highways  is  disposed  of.  Id. 

6.  -  Fire  occasioned  by  sparks  —  Negligence.]    The  mere  fact  that  a  fire  is 
occasioned  by  sparks  emitted  from  the  smoke-stacks  of  locomotives  used  by 
a  railroad  company  does  not,  of  itself,  establish  negligence  on  its  part,  nor 
would  it  be  sufficient  to  authorize  a  jury  to  infer  negligence,  unless  the  emis- 
sion of  the  sparks  was  unusual  in  degree  or  character,  or  the  sparks  were  of  an 
extraordinary  size  and  such  as  would  not  be  emitted  from  perfectly  constructed 
locomotives.    McCAio  ®.  ERIE  RAILWAY  Co  ..............................  5W 

7.  -  Burden  of  proof.]    In  a  case  not  within  such  exception,  the  burden 
of  proving  that  the  railroad  company  did  not  exercise  due  precaution  rests 
on  the  plaintiff.     Id. 

8.  -  Verdict  of  jury  —  ground  of.]     Upon  the  trial  of  an  action  to  recover 
damages  sustained  from  a  tire  started  by  sparks  from  a  locomotive  owned  by 
the  defendant,  the  judge  charged  the  jury  "  if  all  the  evidence  satisfied  them 
that  there  had  been  negligence  on  the  part  of  the  defendants,  although  they 
might  not  be  able  to  satisfy  themselves  in  what  that  negligence  consisted, 
they  would  be  authorized  to  find  a  verdict  for  the  plaintiff."    Held,  that 
this  was  error;  that  if  the  jury  could  not  find  in  the  evidence  any  rational 
ground  upon  which  to  impute  negligence  to  the  defendant,  they  should  give 
a  verdict  in  their  favor.     Id. 

-  Use  of  streets  by,  in  Long  Island  City. 

See  LONG  ISLAND  CITY  v.  LONG  ISLAND  R.  R.  Co  ................    Stf 

-  Erie  Railway  —  not  bound  to  keep  open  its  ticket  offices  —  Fare  —  payment 
of  at  office,  or  to  conductor  —  different  rates. 

See  BORDEAUX  v.  ERIE  RAILWAY  Co  ..............................  579 

-  Horse  cars  —  riding  on  platform  —  proximate  cause  of  death  —  when 
not  negligence. 

See  GINNA  v.  SECOND  AVENUE  R.  R.  Co  ..........................  494 

-  Employment  of  brake/nan  —  scope  of—  forcibly  ejecting  passenger  —  Excet- 
sive  damages  —  verdict  of  jury—  when  not  set  aside. 

£*!  PECK  t>.  N.  Y.  CEN.  AND  HUD.  R.  R.  R.  Co  ....................  288 

RATIFICATION  —  What  acts  of  plaintiff  are  a  ratification  of  a  teieurt 
under  an  attachment. 

See  HERRMAN  v.  GILBERT  .....................................  *™ 


-  Of  acts  of  agent,  by  insurance  company. 

See  SHAFT  v.  PHOSNIX  MUT.  LIFE  INS.  Co 


BSTATE  —  Purchase  of,  subsequent  to  confirmation  of  auettment  — 
presumed  to  have  been  made  subject  to  it. 

See  MATTER  OF  MOORE  .............  ......................... 

-  Inheritance  —  subject  to  power  of  sale  —  title  in  heirt  at  law  until  tab. 

See  PEOPLE  EX  REL.  SHAW  v.  SCOTT  ............................  °«> 

-  Action  to  determine  conflicting  claims  to  —  cottt  in,  on  dimittal  of  eom- 


See  RUGEN  v.  COLLINS 


702  INDEX. 

REAL  ESTATE  —  Continued.  MM. 

— -  Condition  subsequent  —  who  not  a  stranger  to  the  title. 

&wPoar«.  WEIL 418 

— —  Grant  of  lot  on  street — fee  to  center ,  passes  when. 

See  MOTT  r.  MOTT 474 

RECEIPT  —  Ignorance  of  its  contents  —  acts  of  receiptor  inconsistent  icitJt,  knowl 
edge  thereof — evidence  —  action  for  salary".}  The  plaintiff  was  formerly 
employed  to  sweep  the  markets  in  the  city  of  New  York,  at  sixty  dollars 
per  month.  Subsequently,  the  comptroller  reduced  the  pay  to  fifty  dollars 
per  month.  This  action  was  brought  by  the  plaintiff  to  recover  the  differ- 
ence, to  which  he  claims  to  be  entitled.  Upon  the  trial,  pay  rolls  signed  by 
the  plaintiff,  by  making  his  mark,  were  put  in  evidence,  which  stated  that 
the  wages  were  $000  per  annum,  and  containing  u  receipt  in  full  payment 
of  all  services  rendered.  Plaintiff  offered  to  show  that  at  the  time  or  signing 
the  pay  rolls  a  suit  was  pending,  brought  by  him  to  recover  the  additional 
ten  dollars  per  month  for  services  previously  rendered,  in  order  to  show 
that  he  was  not  aware  of,  and  did  not  assent  to  the  statements  contained  in 
the  pay  rolls.  Held,  that  the  evidence  was  properly  rejected. 

DREW  T.  MAYOR 443 

When  evidence  of  promise  to  pay  to  another  the  money  received. 

See  HOWE  MACHINE  Co.  o.  FAGAN 174 

— —  Proof  of  signature  to. 

See  ARMSTRONG  v.  FARGO 175 

Accord  and  satisfaction  —  what  constitute*. 

See  PARDEK  t>.  WOOD 684 

Bailee'*  lien  —  not  lost  because  of  not  being  expressed  in. 

See  HAZARD  t>.  MANNING 813 

REFEREE  —  Report  of,  on  conflicting  evidence — Findings  that  evidence  "  leaves 
the  mind  in  doubt "  —  error — Mistrial. 

See  BRADLEY  v.  MCLAUGHLIN 546 

Fees — foreclosure  sale.}    A  referee  is  only  entitled  to  receive  the  same 

fees  for  selling  real  estate,  as  by  law  is  allowed  to  a  sheriff. 

WARD  v.  JAMES 52$ 

Report  made  under  interlocutory  decree  —  motion  to  confirm  —  at  what 

Special  Term,  in  first  department,  to  be  heard. 

See  EMPIRE  B.  AND  M.  L.  Assoc.  v.  STEVENS 515 

RF.TiATlv.isS  —  Services  between,  action  for — degree  of  consanguinity  neces- 
sary to  create-  presumption  that  they  are  gratuitous. 

See  GALLAGHER  v.  VOUGHT 87 

RELATORS  —  Several  persons  claiming  to  constitute  a  board,  united  as. 

See  PEOPLE  EX  BEL  BABCOCK  ».  MURRAY 577 

RELEASE  —  In  action  to  recover  damages  against  a  fraudulent  purchaser  on 
a  foreclosure  sale  —  a  release  by  plaintiff  of  aU  interest  in  the  property  to  a  person 
acquiring  title  from  such  purchaser, when  no  defense  to  the  action. 

See  DUSBNBURY  v.  CALLAGHAN 541 

Right  of  grantor  to  release  grantee  from  assumption  of  mortgage. 

See  STEPHENS  v.  CASBACKER 116 

RET/TRF  —  Demurrer  —  not  sustained  —  when  the  facts  alleged  justify  any  — 
though  not  the  relief  asked  for. 

See  MACKBY  v.  AUER 180 

REMAINDER  —  Vested — action  to  restrain  waste  by  one  who  hold* — main- 
tainable. 

See  Wn.LiAMS  v.  PKABODT.  .  171 


INDEX.  703 

PACK. 

REMEDY  —  Perjury  in  aformer  suit  —  not  ground  for  bringing  another  action, 
to  retry  the  same  issues — motion  for  new  trial. 

See  Ross  v.  WOOD , 195 

Proceedings  for  opening  struts— certiorari— an  appropriate  remedy  for 

the  renew  of. 

See  PEOPLE  EX  REL.  ACKERLY  v.  Cmr  OF  BROOKLYN M 

REMOVAL  FROM  OFFICE—  Quo  wrranto.)    The  right  to  remove  one 
who  has  unlawfully  intruded  into  a  public  office  is  vested  hi  the  State  alone 
and  its  decision,  as  to  whether  or  not  an  action  shall  be  brought  to  remove 
such  intruder  therefrom,  is  final,  and  cannot  be  reviewed  by  the  courts. 

PEOPLE  KX  KEL.  DEMAREST  v.  FAIRCHILD 334 

REPRESENTATION  —  Fraudulent.}  Persons  dealing  with  a  banker  in 
good  faith,  and  in  reliance  upon  his  apparent  solvency,  will  be  protected 
against  the  consequences  of  the  concealment  by  the  banker  of  his  real  con- 
dition, if  he  is  at  the  time  not  merely  insolvent  but  bankrupt,  and  where 
such  concealment  involves  a  degree  of  bad  faith  from  which  the  law  will 
imply  fraud,  although  no  actual  representation  has  been  made. 

ROEBLING  v.  DUNCAN 50g 

RESALE  —  Of  property — "  difference  and  costs  and  expenses  on  the  resale"  — 
subsequent  taxes  included  within. 

See  RXJHE  v.  LAW 251 

RESERVATION —  Condition  subsequent — who  not  a  stranger  to  the  title. 

See  POST  v.  WEIL 4lg 

RESIDENT  ALIENS  —  Not  required  to  give  security  for  costs,  unless 
residence  is  shown  to  be  merely  temporary. 

See  NORTON  v.  MACKIR 5$0 

RESIDUARY  LEGATEE  —  When  he  may  compel  a  discovery  of  personalty 
held  by  life  beneficiary. 

See  WILLIAMS  v.  PBABODY 371 

REVIVAL  —  Qf  action,  against  representatives  of  deceased  joint  debtor  —  where 
death  occurs  during  pendency  of  action. 

See  HASTEN  v.  BLACKWELL 813 

ROOF  —  Improper  construction  of —  landlord  liable  for  injuries  caused  thereby. 

See  WALSH  v.  MEAD 887 

RULE  36  —  Authorising  inquests  to  be  taken  in  cases  in  which  no  sufficient 
affidavit  of  merits  has  been  made  and  served,  does  not  apply  to  actions  in  equity. 

See  DEVLIN  v.  SHANNON 88! 

SALARY  —  Action  for,  by  one  unlawfully  kept  out  of  office — liability  of  city  for 
payment.]  On  the  last  of  December,  1872,  the  plaintiff,  assistant  clerk  of 
one  of  the  District  Courts  of  New  York,  was  removed  from  that  office  by 
the  justice  of  the  court  and  one  Keeting  appointed  thereto,  who  thereafter 
occupied  the  office  and  discharged  the  duties  thereof  until  March,  1874,  when 
the  plaintiff  was  restored  by  virtue  of  «,  judgment  of  ouster  obtained  by  him. 
The  salary  established  by  law  was  paid  to  Keeting  from  January,  1873,  to 
December,  1873;  that  due  for  the  months  of  December,  1873,  and  January 
and  February,  1874,  still  remained  in  the  hands  of  the  defendant. 

In  an  action  by  the  plaintiff  to  recover  the  salary  from  January,  1878,  to 
March,  1874,  held,  that  he  was  only  entitled  to  recover  so  much  thereof  as 
remained  in  the  hands  of  the  defendant;  that  his  remedy  for  so  much  as  had 
been  paid  to  Keeting  was  against  the  party  who  committed  the  wrong  by 
removing  and  excluding  him  from  the  office.  DOLAN  v.  MAYOR 44£ 

Of  assistant  district  attorney  of  New  York —  not  affected  by  chap.  688,  of 

1871. 

See  FELLOWS  v.  MAYOR 48* 

Action  for  — Receipt  —  ignorance  of  its  contents  —  acts  of  recciptor  inetm- 

tittent  with  knowledge  thereof —  fvidence  of,  inadmissible. 

See  DBKW  v.  MAYOR 441 


704  INDEX. 


BALE  —  Partition  of  personal  property — vessel. 

See  ANDREWS  ».  BETTS 322 

Warranty  —  inspection  of  goods  before  delivery — effect  of  on  —  Penalty. 

SwMcPARLIN  V.  BOYNTON 441 

Of  the  entire  property  of  one  corporation,  for  stock  of  another  —  uleg«l. 

See  TAYLOR  t>.  EARLE 1 

Of  land  under  decree  of  surrogate,  his  power  to  distribute  surplus  on  such 

tale. 

See  ARROWSMITH  t>.  ARROWSMITH 606 

Of  assets  of  corporation  on  dissolution  —  when  trustees  are  unable  to  agree  — 

chap.  442,  of  1876. 

See  MATTER  OP  WOVEN  TAPE  SKIRT  Co 508 

SCANDALOUS  MATTER  —  Responsibility  for  insertion  of  in  pleadings  — 
costs  imposed  on  attorney. 

See  He  VET  v.  C  ANTRELL  and  TADDIKEN  v.  CANTRELL 533 

SECURITY —  For  costs —  resident  aliens  —  not  required  to  give. 

See  NORTON  v.  MACKXE 520 

SEIZIN  AND  WARRANTY—  Covenants  of— breach  of. 

See  DUSENBTJRY  v.  CALLAGHAN 541 

SEIZURE  —  Under  attachment  —  what  acts  of  plaintiff  are  a  ratification  of. 

See  HERRMAN  v.  GILBERT 253 

SEPARATE  ESTATE  —  Of  married  woman  —  Contracts — benefit  of  separate 
estate — presumption  of  law. 

See  NASH  v.  MITCHELL 471 

SERVANT  —  Injuries  to,  arising  from  the  pursuance  of  master's  instruction — 
liability  of  master  for. 

See  SPAN  v.  ELY 255 

SERVICES  —  Between  relatives —  action  for  —  degree  of  consanguinity  neces- 
sary to  create  presumption  that  they  are  gratuitous.]  Where  services  are 
rendered  by  one  person  for  another,  without  any  agreement  in  respect  to 
compensation  therefor,  the  law  will  ordinarily  imply  an  agreement  to  pay 
what  such  services  are  worth,  except  in  the  case  of  near  relatives  or  members 
of  the  same  family,  when  the  law  regards  such  services  as  acts  of  gratuitous 
kindness  and  affection  ;  but  this  exception  cannot  be  extended  to  include  a 
case  where  the  defendant's  wife  and  the  plaintiff's  mother  were  cousins,  the 
relationship  between  the  parties  being  only  by  affinity. 

GALLAGHER  v.  VOUGHT 87 

Rendered  to  trust  estate —  claim  for,  not  a  lien  upon. . 

See  STANTON  v.  KING 4 

SHERIFF  —  Receiptor — right  of — has  a  lien  for  his  fees.]  1.  A  constable 
levied  on  certain  property  under  a  judgment  in  favor  of  the  defendant, 
tgainst  the  plaintiff,  and  committed  the  property  to  the  defendant  as  a 
receiptor.  Held,  that  the  latter  acquired  a  valid  lien  upon  the  property,  for 
his  just  and  lawful  charges  as  such;  that  payment  of  the  judgment  to  the 
sheriff,  upon  the  judgment  of  affirmance  rendered  upon  appeal  to  the  County 
Court,  did  not  discharge  the  lien  of  the  defendant,  or  of  the  constable  for 
his  fees.  ALIGER  v.  KEELER.  . .  121 

2.  Liable  for  ~d.«a*e  of  levy  on  property  of  judgment  debtor,  on  his  being 

adjudged  a  bankrupt.]  The  plaintiff  recovered  a  judgment  against  one 
Prink  for  $346.04,  and  on  the  26th  of  June,  1873,  under  an  execution  issued 
thereon,  the  sheriff  levied  on  sufficient  personal  property  to  satisfy  the  exe- 
cution. After  tne  ievy,  proceedings  in  bankruptcy  were  taken  against  Frink, 
and  the  sheriff  released  the  property  levied  on  and  returned  the  execution 
unsatisfied.  On  a  suit  against  the  sheriff  therefor,  he  set  up  as  a  defense : 


INDEX.  705 

SHERIFF  —  U&uauued.  FAa-> 

1st.  That  pending  proceedings  in  bankruptcy  he  (the  sheriff)  was  enjoined 
from  further  proceedings  on  the  execution. 

Held,  that  this  was  110  defense.  For  if  it  applied  to  the  property  levied  on, 
the  injunction  neither  commanded  or  authorized  the  sheriff  to  release  the  same* 
or  discharge  it  from  his  levy.  It  simply  restrained  him  from  making  any 
disposition  of  it.  But  it  did  not  apply  to  the  property  levied  on,  as  when 
a  levy  has  been  made  before  the  commencement  of  proceedings  in  bank- 
ruptcy, the  possession  and  legal  title  are  in  the  sheriff  for  the  purpose  of 
satisfying  the  process  in  his  hands,  and  he  had  the  right  to  go  on  and  sell 
the  property,  being  accountable  only  for  the  surplus,  if  any,  to  the  bank- 
ruptcy court. 

2d.  That  the  plaintiff  directed  the  sheriff  to  retain  the  execution  till 
requested  to  make  a  return  thereof,  and  subsequently  directed  him  to  make 
a  return  immediately. 

Held,  that  this  was  no  excuse  for  discharging  the  property  and  releasing 
it  from  custody,  especially  as  the  direction  was  given  upon  the  sheriff's 
advice  and  statement,  that  he  would  in  the  mean  time  hold  his  levy. 

3d.  That  the  United  States  marshal,  by  virtue  of  a  warrant  issued  to  him 
in  said  bankruptcy  proceedings,  and  before  the  return  of  the  execution,  took 
possession  of  the  property  levied  on. 

Held,  that  this  was  no  defense;  that  the  taking  by  the  marshal,  even  if 
done  against  the  consent  of  the  sheriff,  was  without  authority  and  illegal, 
the  sheriff  having  both  the  legal  title  and  possession  of  the  property;  that, 
even  supposing  a  yielding  up  thereof  to  a  vis  ma/jor  would  have  afforded 
an  excuse,  the  sheriff  surrendered  the  property  upon  the  mere  exhibit  of 
the  warrant  and  demand  of  the  marshal.  The  marshal  had  no  authority  to 
take  it,  and  an  application  by  the  sheriff  to  the  District  Court  which  issued  the 
warrant  would  doubtless  have  resulted  in  an  immediate  release  of  the  prop- 
erty, or  of  an  amount  thereof  sufficient  to  have  satisfied  the  execution;  and 
it  was  the  sheriff's  duty  to  have  resorted  to  all  reasonable  means  to  protect 
his  levy,  instead  of  surrendering  it  without  objection  or  remonstrance. 

4th.  That  the  plaintiff  had  proved  the  claim  set  forth  in  the  complaint, 
in  the  proceedings  in  bankruptcy,  before  the  commencement  of  his  suit 
against  the  sheriff  and  a  dividend  had  been  duly  declared  to  the  plaintiff  on 
such  proof  of  claim. 

Held,  that  although  section  21  of  the  bankruptcy  act  provides  that  "  no 
creditor  proving  his  debt  shall  be  allowed  to  maintain  any  suit  at  law  or  in 
equity  therefor  against  the  bankrupt,  but  shall  be  deemed  to  have  waived  all 
right  of  action  against  the  bankrupt,  and  all  proceedings  already  commenced 
or  unsatisfied  judgments  already  obtained  thereon  against  the  bankrupt  shall 
be  deemed  to  be  discharged  and  surrendered  thereby,"  yet  the  proof  of  the 
judgment  in  the  bankruptcy  court  (admitting  it  was  legally  done)  did  not  In 
any  manner  affect  the  liability  of  the  sheriff  for  the  previous  unauthorized 
release  of  the  property  levied  on.  The  intent  of  the  section  was  only  to 
prevent  future  proceedings  against  the  bankrupt  or  his  estate.  The  liability 
of  the  sheriff  for  releasing  the  property  was  a  wholly  collateral  liability, 
arising  from  a  breach  of  official  duty,  and  did  not  constitute  in  this  case 
any  claim  or  security  which  could  be  enforced  by  the  assignee  in  bank- 
ruptcy, to  whom  the  property  levied  on  had  been  delivered. 

ANBONIA  BRASS  AND  COPPER  Co.  v.  BABBITT  .........................  157 


8.  -  CTwpter  495  of  IM1  —fees  of  officers  in  criminal  proceeding*  under 
—  by  whom  audited.}  The  term  "criminal  proceedings,"  as  used  in 
chapter  495  of  1847,  providing  for  the  payment,  by  the  several  towns  and 
cities,  of  all  fees  and  accounts  of  magistrates  and  other  officers  for  criminal 
proceedings,  instituted  for  certain  offenses  committed  therein,  embraces  all 
necessary  and  legal  actions  by  magistrates  and  ministerial  officers  having  in 
view  the  punishment  of  public  offenders  and  violators  of  public  rights  and 
duties,  as  distinguished  from  civil  injuries. 

PEOPLE  EX  REL.  VAN  TABSKL  v.  SUPERVISORS  .........................  275 

4.  -  Common  council  of  Hudson  —  power  of  to  audit  claimt.]  Where  the 
sheriff  of  the  county  of  Columbia  rendered  services  in  receiving,  discharging 
and  boarding  prisoners  committed  to  iail  by  the  police  justice  of  the  city  of 
Hudson  for  offenses  committed  therein,  none  of  which  were  felonies,  held* 

HUN—  VOL.  VIII.         89 


706  INDEX. 


TF  —  Continued.  r  AM 

that  even  if  some  of  the  cases  in  which  they  were  rendered  did  not  fall 
within  the  strict  definition  of  "  criminal  proceedings,"  yet  as  they  were  all 
rendered  in  other  than  civil  proceedings,  and  in  the  line  of  his  official 
duties  he  was  entitled  to  compensation  therefor. 

A  just  allowance  in  such  cases  would  be  the  amount  fixed  by  statute  for 
•imilar  services  in  other  proceedings.     A.'. 

5.  §  97,  chapter  468  of  1872.]    Under  section  97  of  chapter  468  of  1872, 

providing  that  the  common  council  of  the  city  of  Hudson  shall  be  "the 
board  of  auditors  to  examine 'the  accounts  of  officers  of  the  city,  with  the 
same  powers  and  shall  proceed  in  the  same  way  as  is  prescribed  by  law 
for  the  board  of  town  auditors  in  towns,"  the  common  council  is  not 
restricted  to  the  examination  and  audit  of  the  accounts  of  "officers  "  of 
the  city,  but  it  is  vested  with  all  the  powers  possessed  by  the  board  of 
town  auditors  of  towns,  and  it  is  its  duty  to  audit  bills  presented  by  the 
sheriff  of  Columbia  county  for  services  chargeable  under  the  act  of  1847, 
upon  the  said  city.  Id. 

Execution  —  Exemption  law,  chap.  184  of  1859  —  duty  of  debtor  to  claim 

exemption  within  reasonable  time. 

See  BROOKS  t>.  HATHAWAY 290 

SHERIFF'S  BOND  —  Statute  —  mandatory  —  permissive.  ]  1.  The  provision 
contained  in  section  3  of  title  5,  chapter  8,  part  3  of  the  Revised  Statutes, 
that  upon  due  proof  of  any  default  or  misconduct  of  the  sheriff  in  his  office 
"  the  court  shall  order  "  his  official  bond  to  be  prosecuted,  is  not  mandatory  but 
permissive,  and  the  court  will  not  allow  such  action  to  be  brought  unless  it 
believes  it  to  be  just  and  proper  so  to  do.  PEOPLE  v.  CONNER 538 

2.  Action  upon  —  when  permitted.]    Where,  upon  an  appeal  to  the 

Court  of  Appeals  from  a  judgment  of  the  General  Term,  affirming  a  judg- 
ment recovered  against  a  sheriff  for  a  failure  to  return  an  execution  within 
the  time  allowed  by  law,  the  sheriff  gives  the  bond  required  by  the  Code  to 
stay  all  proceedings  upon  the  judgment  pending  such  appeal,  the  court  will 
not  allow  an  action  to  be  brought  upon  the  official  bond  of  the  sheriff  until 
such  appeal  be  decided.  Id. 

SHIPPING  —  Sale  of  vessel,  owned  by  tenants  in  common — power  of  Supreme 
Court  to  direct — jurisdiction  of  admiralty  court — partition  of  persoiial  property. 

See  ANDREWS  v.  BETTS 323 

SIGNATURE — On  margin  —  disputed  effect  of .]  1.  P.,  not  mentioned  in 
the  body,  signed  his  name  upon  the  margin  of  an  agreement,  executed  at  its 
foot  by  H.  Held,  that  such  signature  did  not  express  what  participation  in 
the  obligation  P.  meant  to  take,  whether  as  surety,  guarantee  or  original  con- 
tractor, but  it  might,  perhaps,  with  propriety  be  said,  that  it  was  evident  from 
his  in  no  way  expressing  any  other  obligation  or  intention,  that  he  intended 
to  bind  himself  as  a  joint  contractor.  HAUCK  v.  CRAIGHEAD 237 

2.  Where  the  complaint  was  originally  in  form  on  guarantee,  but  an 

amendment  allowed  on  the  trial  charged  P.  as  an  original  joint  contractor, 
rendering  it  necessary  for  the  plaintiff  to  establish  by  competent  proof  that 
such  was  his  relation,  because  his  signature  was  by  indorsement  and  not  by 
•ubscription  to  any  expressed  obligation  of  any  kind,  and  evidence  having 
been  given  to  show  why  P.  signed  the  paper  where  he  did,  and  in  that  way 
to  show  what  he  meant  to  assume,  or  what,  in  other  words,  was  his  relation 
to  the  contract,  held,  error,  to  decide  that  the  action  turned  upon  a  question 
of  law  and  to  dismiss  the  complaint  as  to  P.  on  the  ground  of  misjoinder, 
holding  the  contract  to  have  been  made  by  P.  as  guarantor.     In. 

3.  Liability  thereon  to  be  submitted  on  proof  to  the  jury.]    That  the  plain- 
tiff was  entitled  to  have  the  issue  whether  or  not  P.  was  a  joint  contractor 
with  H.,  created  by  the  amendment  allowed  upon  the  trial,  passed  upon  by 
the  jury.    Id. 

Proof  of,  to  receipt.  . 

See  ARMSTRONG  «.  FABOO.  . ,  171 


INDEX.  7Q7 


SPECIAL  GUARDIAN  —  Owner  of  tax  title  to  infants'  real  estate  —  cannot 
dispose  of  fits  ineumbrance  upon  estate,  although  it  was  acquired  previous  to  such 
appointment.]  Where  a  person  had  been  appointed  a  special  guardian  to 
eeU  certain  real  estate  belonging  to  infants,  and,  at  the  time,  was  himself 
the  owner  of  a  tax  title  thereto,  and  pending  the  proceedings  under  his 
appointment,  sold  the  tax  title  and  retained  the  money,  claiming  it  as  the 
proceeds  of  his  individual  personal  property : 

Held,  that  having  been  appointed  special  guardian  for  the  sale  of  the  land 
while  owner  of,  and  prior  to  the  sale  of  his  tax  title  thereto,  the  being  clothed 
with  such  office  deprived  him  of  the  power  of  disposing  of  the  tax  title,  and 
the  sale  of  the  same  must  be  considered  as  one  accruing  to  the  infants'  advan- 
tage, and  he  must  account  to  them  therefor,  but  should  be  allowed  his  pay- 
ments and  expenses  in  reference  to  such  tax  title,  with  interest,  up  to  the 
time  of  the  adjustment  of  the  balance,  if  any,  due  to  the  infants. 

SPELLMAN  v.  TERRY 905 

SPECIAL  TERMS  —  In  first  depai-tment — Motion*  to  confirm  referee1  s  report 
made  under  interlocutory  decree  —  at  which  to  be  heard. 

See  EMPIRE  B.  AND  M.  L.  Assoc.  v.  STEVENS. 515 

STATE  OFFICER  —  Assistant  district  attorney  of  New  York  —  salary  of — 
not  affected  by  chap.  583  of  1871. 

See  FELLOWS  v.  MAYOR. 484 

STATUTES  — 15.  8.,  356,  §§  1,2  —  Action  to  recover  town  moneys  must 
be  brought  by  supervisor. 

See  TOWN  OF  CHAUTAUQUA  v.  GIFFOKD 152 

IB.  &,  574,  §  57  —  Lands  taken  for  highway — garden  —  what  is. 

See  PEOPLE  EX  REL.  STANTON  v.  HORTON 357 

2  B.  &,  88,  §§  84,  38  —  Notice  to  creditors  to  present  claim  —  when 

sufficient. 

See  PRENTICE  v.  WHITNEY 300 

2  It.  8. ,  473,  §£  92,  93  —  Action  to  recover  town  moneys  must  be  brought 

by  supervisor. 

See  TOWN  OF  CHAUTAUQUA  v.  GIFFORD 158 

2  B.  S. ,  602  —  Decision  of  "  highest  tribunal "  —  Acts  done  under —  Pro- 
tection against  penalty  or  forfeiture  therefor. 

See  CHENANGO  BRIDGE  Co.  v.  PAIGE 292 

2  R.  8.  (Earn.  ed.),  710,  §  11  —  Indictment — for  marrying  a  married 

person  —  sufficiency  of  allegations  as  to  prior  marriage. 

See  SAUSER  v.  PEOPLE 802 

2  B.  8.  (6th  ed.),  928,  §  84—  Civil  damage  act  —  Intoxication  occurring 

vhUe  violating  Sunday  law  —  no  defense. 

See  BEBTHOLF  v.  O'REILLY 

2  R  8.,  chap.  5,  title  I,  art.  6,  §§  5,  Q  —  Act  for  the  discharge  of  impris- 
oned debtors— ''just  and  fair"  —  meaning  of — what  must  be  shown  to  prevent 
discharge. 

See  MATTER  OF  BRADY 4<>7 

3  R,  S.  (Qth  ed.),  110  —  Power  of  surrogate  to  order  investment  of  surplus 

money,  on  sale  for  debt. 

See  ARROWSMITH  v.  ARROWSMITH wo 

3  B.  8.,  title  1,  chapter  6  —  Although  it  refers  to  a1' lost  or  destroyed  wttl,n 

should  have  a  liberal  construction,  and  the  fraudulent  destruction  of  a  single  item 
or  distinct  portion  of  a  will  must  be  considered  as  the  destruction  of  a  will  by 
design  under  section  63,  or  fraudulent,  under  section  67,  if  such  destruction 
effects' the  disposition  of  the  property  of  the  testator  in  any  essential  particular. 

See  HOOK  v.  PRATT loa 

3  jj.  &t  §  3(  title  5    '•hap.  8 —  Construction  of,  at  to  action  on  shertfTt 

tond. 

See  PBOPLK  v.  CONNER W 


r08  INDEX. 


SESSION  LAWS  — 1882,  chap.  224]  Under  section  14,  authorizing  the 
Erie  Railway  Company  "  to  fix,  regulate  and  receive  the  tolls  and  charges 
by  them  to  be  received  for  the  transportation  of  property  or  persons,"  it  may 
establish  two  rates  of  fare,  discriminating  between  the  cases  where  the  ticket 
is  purchased  of  a  conductor  upon  a  train,  and  where  it  is  purchased  at  a 
ticket  office.  BORDEAUX  v.  ERIE  RAILWAY  Co 579 

1847,  chap.  495  —  Fees  of  officers  in  criminal  proceedings  under  —  by 

who  at  audited. 

See  PEOPLE  EX  RHL.  VAN  TASSEL  v.  SUPERVISORS 275 

1849,  chap.  375.]  Section  3,  providing  that  all  contracts  made  between 

persons  in  contemplation  of  marriage  shall  remain  in  full  force  after  such 
marriage,  was  not  intended  to  repeal  the  provisions  of  the  statute  of  frauds, 
declaring  that  every  agreement  made  upon  consideration  of  marriage  shall 
be  void,  unless  it  be  in  writing.  BROWN  v.  CONGER 625 

1850,  chap.  102,  §  16  —  Justices'  Courts  in  the  city  of  Brooklyn. 

See  DOUGLASS  v.  REILLY 85 

Chap.   140  —  right  of  railroad  under,  to  perfect  title  to  land,  found 

defective. 

See  MATTER  OF  PROSPECT  PARK  AND  C.  I.  R.  R.  Co 30 

Chap.  140  —  recording  of  the  order  of  confirmation  of  the  report  of  the 

commissioners  of  appraisement  and  payment  of  the  sum  awarded — vesti  the  title 
of  the  land  appraised  in  the  railroad  company. 

See  MATTER  OF  RHINEBECK  AND  CONN.  R.  R.  Co 84 

1850,  c/iap.  150 —  Power  of  surrogate  to  order  investment  of  surplus  money 

on  sale  for  debt.  :  V 

See  ARROWSMITH  v.  ARROWSMITH 608 

1851,  chap.  504  —  Sufficient  averment  in  indictment  under 

See  PICKETT  v.  PEOPLE 88 

1854,  chap.  282,  §  5  —  Vests  the  court  with  power  to  make  att  necessary  orders 

and  give  the  necessary  directions  to  carry  into  effect  the  object  and  intent  of  chap. 
140,  Laws  of  1850. 

See  MATTER  OF  RHINEBECK  AND  CONN.  R.  R.  Co 84 

1854,  chap.  402,  §  10  —  Failure  to  serve  bill  of  particulars,  as  required  by 

—  waived  by  service  of  answer. 

See  NORCOTT  v.  FIRST  BAPTIST  CHURCH  OF  ROME 639 

1855,  chap.  214 — Sufficient  averment  in  indictment  under. 

See  PICKETT  v.  PEOPLE 88 

1858,  chap.  338  —  Who  is  party  aggrieved  under  —  Assessment — purchase 

of  property  after  confirmation  of. 

See  MATTER  OF  MOORE 513 

1859,  chap.  134  — Duty  of  debtor  to  claim  exemption  under,  within  reason- 
able time. 

See  BROOKS  v.  HATHAWAY 290 

1860,  chap.  348,  §  8  —  The  omission  of  an  assignee  for  the  benefit  of 

oreditors  to  file  the  bond  required  by  section  3  of  chapter  348  of  1860,  does  not, 
certainly  until  the  inventory  is  filed,  per  se  invalidate  the  assignment. 

See  VON  HEIN  v.  ELKUS 616 

Ohap.   90,  §  1  —  when  separate    estate  of  married  woman  chargeable 

under  —  Acts  by  her,  as  her  husband's  agent. 

See  COVERT  v.  HUGHES 805 

1861,  chap.  297 —  Construction  of. 

See  GUEST  v.  CITY  OF  BROOKLYN 97 

1863,  chap.  392 — Appeal  to  County  Court  —  security  on — jurisdictional. 

See  KUNTZ  v.  LICHT 14 

1866,  chap.  647,  §  3,  aw  amended  by  chap.  695  of  1871  —  County  Court  hat 

power  under,  on  application  of  party  aggrieved,  to  order  taxes  (when  paid)  to  be 
refunded. 

See  MATTER  OF  N.  Y.  CATHOLIC  PROTECTORY •! 


INDEX.  709 

SESSION  LAWS  —  Continued.  ,Am 


^  chap-  953~  (amended  by  chap.  317  */  1868)—  Authorizing  vOiaoe 

ty  fort  Midword  to  issue  bonds  —  publication  under  —  consent  under. 

See  CULVER  v.  VILLAGEOP  FORT  EDWARD  .............  '  .........  ,  .  840 

—  -  1868»  clMP-  317  —  (amending  chap.  953  of  1867)  —  Authorizing  village  of 
fort  JSdward  to  issue  bonds  —  publication  under  —  consent  under. 

See  CULVER  v.  VILLAGE  OP  FORT  EDWARD  .......................    340 

-  Ohap.  818  —  Construction  of. 

See  MERRITT  v.  VILLAGE  OP  PORTCHBSTER  ............  ,    40 

--  1869,  chap.  383  —  Construction  of. 

See  QUEST  v.  CITY  OP  BROOKLYN  ...............................      97 

-  1870,  chap.  175,  §  3  —  Licenses  under  may  be  granted  for  less  than  a  year. 

See  PEOPLE  v.  G-AINEY  ..........................................    gO 

-  1871,  chap.  461,  §  14,  sub.  5  of  title  3,  and  §  19  of  title  11  —  Construed 
as  to  use  of  streets  in  Long  Isla.nd  City  by  railroads  running  to  East  river. 

See  LONG  ISLAND  CITY  v.  LONG  ISLAND  R.  R.  Co  .................    58 

-  Chap.  583  —  "to  regulate  att  salaries  of  officers   and  employes  of  the 
city  and  county  government"  of  New  York  —  does  not  affect  salary  of  assistant 
district  attorney  —  local  act  —  specifies  object. 

See  FELLOWS  v.  MAYOR  .........................................  434 

-  Chap.  695  —  amending  %  3,  chap.  647  of  1866  —  County  Court  has  power 
under  on  application  of  party  aggrieved  to  order  taxes  (when  paid)  to  be  refunded. 

See  MATTER  OP  N.  Y.  CATHOLIC  PROTECTORY  ..................    91 

-  1872,  chap.  468,  §  98  —  Cnstruction  of  —City  of  Hudson. 

See  PEOPLE  EX  REL.  VAN  TASSEL  v.  SUPERVISORS  .................  275 

—  Chap.  580  —  assessment  —  when  vacated. 

See  MATTER  OP  N.  Y.  PROT.  EPIS.  PUB.  SCHOOL  ..................  457 

-  1873,  chap.  330  —  Charter  of  the  village  of  Deposit  —  which  provides  for 
the  payment  of  att  sums  received  for  licenses  into  the  treasury  of  the  village  —  not 
repealed  by  chap.  444  of  Laws  of  1874  creating  boards  of  excise  for  the  several 
counties  of  the  State. 

See  VILLAGE  OP  DEPOSIT  v.  DEVEREUX  ..........................  317 

—  Ohap.  335,  §  96,  charter  of  the  city  of  New  York  —  Right  of  attorney  for 
collection  of  personal  taxes,  to  costs,  under. 

See  GALE  v.  MAYOR  .................................  ........  370 

-  Chap.  489  —  Mechanic's  lien  —  materials  furnished  to   vendee  in  pos- 
session under  executory  contract  —  Consent  —  Title  of  owner  of  fee  —  when  not 
affected. 

See  CRAIG  v.  SWINERTON  ........................................  144 

•  Chap.  646  —  Action  under  —  constitutional  —  against  landlord  of  prem- 
ises, where  intoxicating  liquor  is  sold  —  Contributory  negligence  —  intoxication 
occurring  while  violating  Sunday  law  —  no  defense. 

See  BERTHOLP  v.  O'REILLY  ..................................  ----     18 

-  Ohap.     646  —  Constitutional  —  what     recoverable     under  —  exemplary 
damages. 

See  FRANKLIN  v.  SCHERMERHORN  .......  .....................  ____  113 

.  Ohap.  646  —  Liability  of  employer  for  liquor  furnished  by  hit  bartender 
without  his  knowlege,  and  against  his  orders. 

See  SMITH  «.  REYNOLDS  .......................................  128 

-  •  Ohap.  646  —  To  recover  damages  against  owner  of  premises  where  intoxi- 
cating liquors  are  sold  —  permission  or  knowledge  of  owner  must  be  proved  —  not 
presumed  or  inferred. 

See  MRAD  v.  STBATTON  .........................................  14ft 

—  —  Chap.  646  —  Civil  damage  act  —  when  cause  of  action  exists  under. 

See  QUAIN  v.  RUSSELL  .........................................  819 

-  0  hap.    820  —  Prosecution    by  third    person,   for    violation  of   tarns* 
law  —  discontinuance    of    action    by    overseer    of    the    poor.}      Where    an 
action  is  brought  to  recover  a  penalty  for  a  violation  of  the  excise  law, 


710  INDEX. 

SESSION  LAWS  —  Continued.  PAM 

under  chapter  820  of  1878,  authorizing  any  person  to  prosecute  therefor 
in  the  name  of  the  overseer  of  the  poor,  in  case  the  proper  persons  refuse 
for  ten  days  to  bring  auch  action,  the  overseer  of  the  poor,  in  whose  name 
the  action  is  brought,  has  no  power  to  consent  to  its  discontinuance  with- 
out the  consent  of  the  persons  by  whom  it  was  commenced. 

RECORD  o.  MESSENGER 283 

Special    and     general,    construed    together —  chap.    330    of   1878  — 

cttiip.  444  of  1874  —  license  laws. 

See  VILLAGE  OF  DEPOSIT  v.  DEVEREUX ...   317 

1874,  chap.  444 —  Creating  boards  of  excise  for  the  several  counties  of  the 

State,  does  not  repeal  that  provision  of  the  charter  of  the  village  of  Deposit  (chap. 
830  of  1873)  which  provides  for  tfte  payment  of  all  sums  received  for  licenses  into 
the  treasury  of  the  village. 

See  VILLAGE  OP  DEPOSIT  v.  DEVEREUX 317 

1875,  chap.  345  —  Construction  of. 

See  MERRITT  v.  VILLAGE  OP  PORTCHESTER 40 

1876,  chap.  442  —  Authorizing  the  dissolution  of  a  corporation  —  trustees 

unable  to  agree  — power  of  court  under  to  order  sale  of  assets. 

See  MATTER  OP  WOVEN  TAPE  SKIRT  Co 508 

STATUTE  OF  FRAUDS  —  Contract  in  consideration  of  marriage — partuil 
performance.  ]  1 .  Where  a  man  agrees  by  parol  to  give  a  woman  certain  prop- 
erty in  consideration  of  her  marrying  him,  the  subsequent  marriage  is  not 
such  a  partial  performance  of  the  contract  as  will  induce  a  court  of  equity  to 
compel  a  specific  performance  thereof,  notwithstanding  the  provisions  of  the 
statute  of  frauds.  BROWN  v.  CONGER 625 

2.  Chap.  375  of  1 849.  ]  The  third  section  of  chapter  375  of  1849,  provid- 
ing that  all  contracts  made  between  persons  in  contemplation  of  marriage 
shall  remain  in  full  force  after  such  marriage,  was  not  intended  to  repeal  the 
provisions  of  the  statute  of  frauds  declaring  that  every  agreement  made  upon 
consideration  of  marriage  shall  be  void,  unless  it  be  in  writing  Id. 

STAY  OF  PROCEEDINGS  —  Foreclosure  —  adjournment  of  sale.  ]  Where, 
after  a  referee  has  been  appointed  to  sell  real  estate,  in  pursuance  of  a  judg- 
ment of  foreclosure,  and  a  notice  of  sale  has  been  duly  published,  the  defend- 
ant serves  an  undertaking  to  stay  proceedings  upon  appeal,  in  pursuance  of 
section  341  of  the  Code,  the  plaintiff  is  not  required  to  abandon  the  proceed- 
ings instituted  by  him,  but  may  adjourn  the  sale,  until  it  can  be  determined 
whether  or  not  the  sureties  will  justify.  WARD  v.  JAMES 526 

STOCK — In  national  bank  —  actual,  not  par  value,  the  basis  of  taxation. 

See  PEOPLE  v.  COMMISSIONERS  OP  TAXES 58C 

STOCKHOLDER — Action  by,  agaiiut  trustees  and  company — when  main- 
tainable—  Code,  §  119.]  1.  A.  complaint  averring  that  there  are  only  five 
trustees  of  a  company;  that  the  plaintiff  was  a  stockholder  when  the  action 
was  brought;  that  three  of  such  trustees,  who  were  the  persons  charged 
with  committing  a  fraud,  were  made  defendants,  and  that  the  action  is 
brought  in  behalf  of  all  other  stockholders  who  will  join,  comes  within 
section  119  of  the  Code,  and  a  demurrer  interposed  thereto  on  the  grounds 
'•that  the  plaintiff  has  not  legal  capacity  to  sue:  1st.  Because  the  plaintiff 
only  became  a  stockholder  after  the  matters  complained  of  occurred;  2d. 
Because  the  statutes  of  this  State  restrict  the  power  to  bring  actions  of  this 
nature  to  the  people  of  the  State,  through  their  attorney-general,  and  to 
creditors  of  the  company;  3d.  That  the  Smith  and  Parmelee  Gold  Company 
alone  had  the  right  to  maintain  the  action,  and  had  never  been  requested  so 
to  do,"  will  not  be  sustained.  YOUNG  v.  DRAKE 5t 

2.  — —  Evidence  —  that  corporation  will  not  prosecute.]  Although  the  general 
rule  is  that  an  action  of  this  kind  must  be  brought  by  the  corporation,  yet 
where  the  complaint  shows  that  the  corporation  is  still  controlled  by  the 
same  trustees  who  are  accused  of  the  fraud,  or  where  such  accused  per- 
sons are  a  majority  of  the  trustees,  it  is  sufficient  evidence  that  the  cor 
poration  will  not  prosecute,  and  that  an  application  to  the  trustees  to  direct 


INDEX.  711 

STOCKHOliDER —  Continued.  TAam 

»  suit  to  be  brought  against  themselves,  or  the  derelict  majority  of  their 

members,  would  be  useless.    Id. 

3. A  purchase  of  stock,  after  an  alleged  fraud  is  committed,  does  not 

condone  the  fraud,  and  the  purchaser  acquires  all  the  rights  of  the  person 
of  whom  he  purchased.  Id. 

In  corporation — acts  of  majority,  where  they  do  not  bind  minority  —  Sale 

of  entire  corporate  property  for  stock  in  another  corporation  —  illegal. 

See  TAYLOR  v.  EAHLE 1 

Dividend  payable  at  future  time — who  entitled  to. 

See  HILL  v.  NEWICHAWANICK  Co 469 

STREETS  —  Obstruction  of — License  from  corporation,  when  presumed.  ]  1 .  The 
fact  that  a  party  constructing  a  building  deposits  materials  therefor  in  the 
street  and  keeps  them  there  during  the  erection  of  the  building,  with  the 
full  knowledge  of  the  trustees  and  superintendent  of  the  village,  is  sufficient 
to  imply  a  consent  on  the  part  of  the  village  authority  to  such  use  of  the  street. 
It  does  not  create  a  nuisance  to  deposit  such  materials  in  the  street,  if  they  are 
properly  guarded.  VILLAGE  op  SENECA  FALLS  t>.  ZALINSKI 571 

2.  Injury  to  tra'oeler.]    Where  a  party  is  authorized  by  the  corporate 

authority  to  deposit  building  materials  in  a  public  street,  it  is  his  duty  to  see 
that  proper  guards  or  lights  are  erected  and  maintained  during  the  night  so 
i hat  travelers  may  not  be  exposed  to  injury  thereby.  Id. 

3. Liability  of  party  causing.  ]    The  corporation  may  maintain  an  action 

against  such  person,  to  recover  the  amount  of  a  judgment  which  it  has  been 
compelled  to  pay,  to  one  who  was  injured  in  consequence  of  his  failure  to 
erect  and  maintain  proper  guards  or  lights  by  such  obstructions.  Id. 

4. Bound  by  judgment  against  corporation.}    Where  he  has  been  uotined 

of  the  pendency  of  an  action  against  the  corporation,  the  judgment  recovered 
thereon  is  conclusive  against  him  so  far  as  relates  to  the  cause  of  action,  the 
amount  of  damages,  and  the  other  matters  necessarily  involved  therein.  Id. 

Regulation  of  their  use  by  railways  — in  Long  Island  City. 

See  LONG  ISLAND  CITY  v.  LONG  ISLAND  R.  R.  Co 58 

Proceedings  for  opening  —  certiorari  an   appropriate   remedy  for    the 

renew  of. 

See  PEOPLE  KX  EEL.  ACEERLY  v.  CITT  OF  BKOOKLYN 06 

Construction  of — surface  water — collection  of,  into  one  stream. 

See  BASTABLE  v.  CITY  OF  SYRACUSE 587 

Fee  to  center  of —  when  it  passes  with  grant  of  lot  on  the  same. 

See  MOTT  v.  MOTT 474 

STREET  CARS  —  Negligence  — .riding  on  platform  of  street  can — proximate 
tause  of  death. 

See  GINNA  v.  SECOND  AVENUE  R.  R.  Co 494 

STREET  OPENING  —  Neglect  of  owner  to  remove  building — unauthorized 
acts  of  officers  in  so  doing — liability  of  city  therefor  —  measure  of  damage*. 

See  PETERS  t>.  MA  YOB 400 

SUBROGATION  —  Of  subsequent  ineumbraneer. 

See  FROST  v.  YONKERS  SAVINGS  BANE 86 

SUBSCRIPTION  —  For  erection  of  church — payments  to  be  made  to  treasurer 
to  be  appointed  by  subscribers  —  not  enforceable  by  church  corporation,  created  aftor 
fubscription. 

See  PRESBYTERIAN  Soc.  OF  KNOXBORO  e.  BEACH 844 

•UBSTANTIAJL  INCLOSURE  —  What  it,  under  tub.  1,  §  85  of  fa  (Jo*. 

Bee  POPE  v.  HANMKR M* 


712  INDEX. 


SUPER VISOjlS  —  Board  of,  of  New  York — power  to  appoint  deputy  clerk.  ] 
1.  The  board  of  supervisors  of  the  county  of  New  York  appointed,  in  1860,  a 
deputy  to  their  clerk,  and  in  1864  fixed  his  salary  at  $4,000  per  year,  appro- 
priations for  the  payment  of  which  were  made  by  the  legislature  in  each 
year  from  1860  to  1870.  Chapter  190  of  1870,  creating  a  new  board  of  super- 
visors, provided  that  all  officers  and  subordinates  of  the  existing  board  hold- 
ing office  or  place  therein  should  continue  in  their  respective  offices  and 
places,  subject  to  removal  for  misconduct,  and  authorized  the  new  board  to 
fill  vacancies.  Held,  that  although  there  was  no  statute  authorizing  the  old 
board  to  appoint  a  deputy  clerk,  yet  the  acts  of  the  legislature  annually  appro- 
priating money  for  the  payment  of  his  salary,  and  the  act  of  1870,  conferred 
such  authority  upon  the  new  board.  DUNPHT  v.  MA  YOU 480 

2. Appropriation  for  payment  of.]    The  plaintiff  was  appointed  first 

deputy  clerk  of  the  board  in  January,  1872,  and  continued  to  perform  the 
duties  of  his  office  until  May,  1873.  No  appropriation  for  the  payment  of  his 
salary  was  made  by  the  board  of  apportionment,  created  by  chapter  583  of 
1871,  for  the  year  1872  and  the  first  four  months  of  1873.  In  this  action, 
brought  by  the  plaintiff  to  recover  the  amount  of  his  salary  for  this  period, 
the  defendant  insisted  that  the  absence  of  an  appropriation  for  its  payment 
relieved  it  from  all  liability  under  section  5  of  chapter  583  of  1871,  providing 
that  no  liability  should  be  incurred  by  the  officers  of  the  county,  for  any 
purpose  whatsoever,  exceeding  the  amount  of  the  appropriation  made  for 
that  purpose.  Held,  that  as  the  duration  of  the  plaintiff's  office  was  not  pre- 
scribed by  law,  and  as  the  board  had  power  to  terminate  the  same,  its  action 
in  continuing  to  employ  him,  after  it  was  known  that  no  appropriation  had 
been  made  wherewith  to  pay  his  salary,  was  a  violation  of  section  5  of 
chapter  583  of  1871,  and  that  the  defendant  was  not  liable  for  the  debt  so 
incurred.  Id. 

Actions  to  recover  town  moneys  must  be  brought  by  —  1  R.  8. ,  856,  §  1  —  2 

R.  8.,  478,  §§92,  93  —  Code,  §  113. 

See  TOWN  OF  CHAUTAUQUA  v.  GIFPORD 159 

SUPPLEMENTAL  COMPLAINT  —  Interpleader  —  Code,  %  122. 

See  WILSON  t>.  LAWRENCE 598 

SUPREME  COURT  —  Power  of,  to  establish,  destroyed  will — where  portions 
of  a  will  are  revoked  by  codicil  fraudulently  procured,  and  destroyed  —  the 
Supreme  Court  has  power  to  establish  and  restore  the  portion  destroyed  —  the  Sur- 
rogate'a  Court  has  no  such  power. 

See  HOOK  t>.  PRATT 1 08 

Quasi  officers  of — who  are — physician  appointed  by  court  to  examine  at 

to  pregnancy  of  widow. 

See  ROLLWAGEN  0.  POWELL 210 

Power  of,  to   direct  sale  of  vessel,  owned  by  tenants  in  common  — 

Partition. 

See  ANDREWS  v.  BBTTB 322 

SURETY — Mortgage  —  agreement  to  extend  between  holder  and  grantee  cove- 
nanting to  assume,  made  without  consent  of  grantor  (mortgagor) — discharges 
mortgagor. 

Bee  CALVO  t>.  DA  VIES 223 

And   lessee  —  can  be   sued  jointly,  under   Code,   §  120  —  Continuing 

guarantee. 

See  DECKER  e.  GAYLORD 110 

—  Liability  of,  on  undertaking,  where  one  only  of  two  defendants  can  be 
invested  on  execution. 

See  GROUSE  «.  PADDOCK 680 

SURFACE  WATER  —  Municipal  corporation  —  construction  of  streets.} 
Although  no  action  can  be  maintained  for  the  diversion  from  its  ordinary 
course  of  the  surface  water  arising  from  nuns  and  melting  snow,  yet  if  such, 
water  be  collected  into  a  single  channel  and  cast  in  ajarge  volume  upon  the 
land  of  ai*  adjacent  owner,  he  may  maintain  an  action  to  recover  the  damages 
sustained  thereby.  BASTABLE  v.  CITY  OF  SYRACUSE 087 


INDEX.  713 

SURPLUS  MONEYS  —  On  tab  of  land  under  done  of  surrogate  —  hit 
power  to  distribute. 

See  ARROWSMTTH  v.  ARROWSMTTH  ..............................  908 

SURRENDER  —  And  cancellation  of  note,  not  paid  infuU  —  no  right  of  action 
exists  thereof  ter  for  amount  unpaid 

See  KENT  v.  REYNOLDS  ..........................................  650 

SURROGATE  —  Decree  of,  to  pay  claim  for  physician?  fee*  in  examining  at 
to  pregnancy  of  widow,  charged  on  estate  by  Supreme  Court  —  although  not  directly 
within  his  statutory  powers  —  upheld. 

See  ROLLWAGEN  ®.  POWELL  .....................................  210 

-  Power  of,  to  distribute  surplus  on  sale  of  land*. 

See  ARROWSMITH  v.  ABBOWSHITH  ................................  600 

SURROGATE'S  COURT  —  Jurisdiction  of,  to  establish  destroyed  te»ZZ.l  The 
Surrogate's  Court  can  only  grant  letters  of  probate  on  a  perfected  will,  bat 
has  no  jurisdiction  to  establish  a  lost  or  destroyed  will.  HOOK  ».  PRATT.  .  .  .  108 

8u.BVJ.viNQ  PARTNER—  Trustee  —  partnership  effects.}  A  surviving 
partner  has  a  legal  right  to  the  partnership  effects,  yet,  in  equity,  is  consid- 
ered a  trustee  to  pay  the  debts  and  dispose  of  the  effects  for  the  benefit  of 
himself,  and  the  estate  of  his  deceased  partner.  SKLDMOKE  v.  COLLIEH  .....  00 

TAX  —  Irregularity  of  assessment  —  cured  by  imposing  tax  to  the  tame  amount. 

See  GUEST  v.  CITY  OF  BROOKLYN  .........  .  .......................    07 

-  Illegal  assessment  —  action  to  vacate  and  set  aside  —  not  maintainable, 
unless  the  defects  in  the  assessment  are  such  as  would  not  appear  in  proceedings  to 
enforce  the  lien  thereof. 

Bee  BOYLE  v.  CITY  OF  BROOKLYN  .................................    83 

-  Power  of  County  Court  to  order  refunding  of. 

See  MATTER  OF  N.  Y.  CATHOLIC  PROTECTORY  ....................    91 

TAXES  —  "  Difference  and  costs  and  expenses  on  the  resale."]  On  a  resale  of 
property  for  non-compliance  with  the  terms  of  the  previous  sale,  under  the 
condition?  of  the  sale,  that  the  purchaser  shall  pay  the  "difference  and  costs 
and  expenses  on  the  resale,"  subsequent  taxes  are  included.  RUHE  v.  LAW,  851 

TAXATION  —  Of  costs  —  Certificate  of  county  judge  is  conclusive  upon  the  toot- 
ing officer,  to  show  that  the  title  to  land  came  in  question  on  the  trial. 

V.  O'CONITEB  .........................................   880 


-  Of  national  bank  —  actual,  not  par  value  of  stock,  the  basis  of  —  surplus, 

See  PEOPLE  t.  COMMISSIONERS  OF  TAXES    ........................  588 

THIRD  PERSON  —  Mortgagee  —  righttosueon  covenant  made  for  his  benefit. 

See  CAMPBELL  v.  SMITH  .........................................      • 

TIOJUfiT  OFFICE  —  Erie  Railway  Co.  not  bound  to  keep  open  its  ticket  offlee. 

See  BORDEAUX  «.  ERIE  RAILWAY  Co.  ............................  570 

TITLE  TO  LAND  —  Justice's  Court  —  when  not  in  question  —  effect  of  judg 
*nent  in  ejectment. 

See  HALEY  v.  WHEELER  .........................................  Ml 

TITLE  —  Condition  subsequent  —  Stranger  to  tide.]  Hogan  contracted  to  seD 
certain  land  to  Mark,  upon  condition  that  no  part  thereof  or  buildings  thereon 
"  should  ever  be  used  or  occupied  as  a  tavern."  Subsequently  he  conveyed 
the  same  land  to  trustees,  subject  to  the  said  agreement  Thereafter  he  and 
the  trustees  conveyed  the  land  to  Mark  by  a  tripartite  deed  (reciting  the 
agreement  and  subsequent  conveyance  to  the  trustees),  "  subject  to  and  upon 
the  condition  hereinbefore  expressed,  unto  the  said  Mark,  his  heirs  and 
assigns."  The  deed  contained  a  covenant  by  Hogan  and  the  trustees  that 
some  or  one  of  them  were  or  was  lawfully  seized,  etc.,  and  full  covenant 
of  warranty  by  Hogan.  Subsequently  the  trustees  reconveyed  to  Hogan  all 
the  property  undisposed  of  by  them.  Held  (1),  that  the  condition  wa» 
reserved  to  Hogan  and  not  to  the  trustees;  (2),  that  he  WM  not  a  stranger 

HUN—  VOL.  VIII.         90 


714  INDEX. 

TITUS  —  Continued. 

to  the  title  and  that  the  reservation  to  him  was  valid;  (8),  that  the  exist- 
ence of  the  condition  was  such  a  defect  as  justified  a  purchaser  in  refusing 
to  accept  the  title.  POST  t>.  Wrau 411 

When  it  passes — on  tale  of  personal  property  —  delivery  —  distinction 

tottoeen  acts  to  designate  articles  and  those  to  ascertain  their  value,  as  affecting  title. 

See  BURROWS  v.  WHTTAKER 260 

To  real  property — when  put  in  issue  by  the  pleadings —  certificate  of 

county  judge  —  conclusive  in  taxation  of  costs  on  taxing  officer. 

See  LILLIS  t.  O'CoNNBR 880 

Ooods  manufactured   to  order  —  Payment  of  price  after  seeing  them, 

and  direction  to  ship  —  is  sufficient  acceptance  to  transfer  and  vest  title. 

See  HUBBARD  v.  O'BRIEN 244 

Defective,  of  railroad  to  land — right  to  perfect  under  chapter  140,  Laws  of 

1850. 

See  MATTER  OF  PROSPECT  PARK  AND  C.  I.  R  R  Co 80 

TOWN  —  Claims  against  —  right  to  sue — town  auditors  —  board  of  supervisors  — 
commissioner  of  highway*. 

See  SHERMAN  v.  TOWN  OF  HAMBURG . .  643 

TOWN  BONDS  —  Issue  of  under  chapter  953  of  1867,  as  amended  by  chapter 
317  of  1868. 

See  CULVER  v.  VILLAGE  OF  FORT  EDWARD 840 

TOWN  MONEYS  —  Action  to  recover  must  be  brought  by  supervisor —  IR.8., 
856,  §  1  —  2  R.  8. ,  473,  §§  92 .  93  —  Code,  113.]  The  collector  of  a  town  depos- 
ited with  bankers  moneys  collected  by  him  for  taxes.  Subsequently  the  super- 
visor agreed  with  the  bankers  that  they  could  retain  the  moneys  until  wanted. 
Afterwards,  on  demand  by  him  therefor,  payment  was  refused. 

Held,  that  an  action  to  recover  the  same  could  not  be  maintained  in  the  name 
of  the  town,  but  must  be  brought  by  its  supervisor. 

TOWN  OF  CHAUTAUQUA  v.  GIFFORD 168 

TRESPASS  —  Possession.]  1.  Although,  as  a  general  rule,  trespass  tjuare 
elausum  fregit  can  only  be  maintained  by  one  in  actual  possession  of  the 
premises  when  the  injury  is  committed,  yet  in  the  case  of  a  disseisin  the 
disseisee,  after  he  has  regained  possession,  may  maintain  the  action  against 
the  disseisor  for  acts  intermediate  the  disseisin  and  re-entry. 

HALEY  v.  WHBKLER 569 

2.  Justice'*    Court  —  title  to  land  —  when  not   in  question  —  ejfect  of 

judgment  in  ejectment.]  Wheeler  brought  an  action  of  ejectment  against 
Haley,  and,  having  recovered  judgment  therein,  entered  into  possession  of 
the  premises  ;  subsequently  this  judgment  was  set  aside,  and  upon  ;he  new 
trial  Haley  recovered  a  judgment,  whereupon  possession  of  the  premises 
was  surrendered  to  him  by  Wheeler.  In  an  action  of  trespass  quare  clausum 
fregit  by  Haley  to  recover  for  acts  committed  by  Wheeler  while  in  possession 
under  the  first  judgment,  held,  that  he  was  entitled  to  recover.  Held,  further, 
that  in  such  action  the  title  to  land  did  not  come  in  question  so  as  to  deprive 
a  justice  of  the  peace  of  jurisdiction  thereof,  as  the  final  judgment  in  the 
ejectment  suit  conclusively  established  that  the  title  was  in  Haley  as  against 
Wheeler.  Id. 

TRIAL  —  By  jury  —  refusal  to  restate  evidence,  when  requested  by  jury.]  1. 
On  the  trial  of  an  action  for  work  and  labor  done  and  materials  furnished  by 
the  plaintiff  for  the  defendant,  after  the  jury  had  retired  they  requested  of 
the  court  information  as  to  what  a  witness  for  defendant  had  testified  to,  in 
reference  to  a  portion  of  the  work  claimed  for.  Held,  error  for  the  court  to 
refuse  the  request  of  the  counsel  for  the  defendant,  made  in  the  presence  of 
plaintiffs  counsel,  to  bring  in  the  jury  and  state  the  evidence  to  them  as 
requested.  DREW  p.  ANDREWS £t 

2.  Pleadings,  not  evidence  to  go  to  the  jury.  ]  When  the  jury  had  re- 
turned into  court,  and  stated  that  they  had  found  for  the  plaintiff  but  fixed 
oo  amount,  held,  error  for  the  court  to  direct  the  jury  to  take  the  pleadings 


INDEX.  715 

TRIAL  —  Continued.  TM 

and  return  again  and  fix  the  amount  The  pleadings  were  not  evidence 
3ven,  beyond  the  portion  thereof  admitted  in  the  answer.  Id. 

Of  issues  by  the  court  —  discretionary  on  the  foreclosure  of  a  mortgage  — 

the  defense  tfiereto  bei/iy  usury  and  fraud. 

See  KNICKERBOCKER  LIFE  INS.  Co.  v.  NELSON 91 

TRUST — Insurance  —  assignment  through  coercion.]  1.  Where  a  plaintiff 
under  the  influence  and  coercion  of  her  husband,  assigned  to  the  defendant  two 
policies  of  insurance,  issued  to  her  on  the  life  of  her  husband,  to  secure  a  debt 
due  from  him  to  the  defendant,  the  latter,  fearing  that  the  assignment  was 
invalid  under  the  laws  of  this  State,  in  pursuance  of  au  arrangement  with 
the  company,  allowed  the  policies  to  be  forfeited  for  non-payment  of  premi- 
ums, and  received  new  policies  from  the  company  for  his  benefit  as  a  cred- 
itor, for  the  same  amounts,  bearing  the  same  numbers,  referring  to  the  same 
register  hi  the  company's  books,  and  for  the  same  premiums,  except  that  the 
latter  were  payable  semi-annually  instead  of  annually,  such  policies  being 
issued  upon  the  original  applications  and  without  a  new  examination.  Held, 
that  the  new  policies  were  to  be  considered  as  renewals  of  the  old  ones,  and 
subject  to  a  trust  in  favor  of  the  plaintiff  the  same  as  was  impressed  upon  the 
original  ones.  BARRY  v.  BRUNE 395 

2.  Mortgage.]    No  trust  can  be  created  and  attached  to  an  existing 

mortgage,  so  as  to  make  it  a  valid  security  for  any  greater  amount  than  that 
specified  in  the  body,  and  upon  the  face  thereof. 

See  HTTBBELL  v.  BLAKESLEE 003 

TRUSTEES  —  Of  corporation — disagreement  as  to  management  of —  dissolution 
of — stde  of  assets  —  cfuip.  442,  of  1876. 

See  MATTER  OF  WOVEN  TAPE  SKIRT  Co 50? 

TRUST  ESTATE  —  Services  rendered  to  —  claim  for,  not  a  lien  —  Ceslui  que 
trust  —  not  necessary  party  to  action  to  enforce.]  1.  A  party  is  not  liable  for 
any  portion  of  a  claim  for  services  rendered  to  a  trust  estate,  by  reason  of 
his  subsequent  receipt  of  a  portion  of  such  trust  estate  under  the  provisions 
of  the  will  creating  it,  and  is  not  a  necessary  party  to  an  action  against  the 
trustees  of  such  estate  to  recover  a  balance  of  a  claim  for  such  services. 

STANTON  c.  KINO 4 

2.  When  services  rendered  to,  a  lien.]    In  what  case  a  trustee  may  make 

a  claim  for  services  rendered  to  an  estate  a  lien  upon  the  trust  estate,  con- 
sidered. Id. 

UN  CONTRADICTED  STATEMENTS—  Credit  due  thereto— how  affected 
by  fact  that  witness  Juts  an  interest  in  the  suit. 

See  SHERIDAN  v.  MAYOR 484 

UNDERTAKING  —  On  arrest  —  liability  of  suritiet  on,  where  one  only  of  two 
defendants  can  be  arrested  on  execution. 

See  CROUSE  r.   PADDOCK 880 

UNDERVALUATION  —  By  assessors  of  one  party's  property,  gives  no  right 
to  another,  that  his  shatt  also  be  undervalued. 

iiee  PEOPLE  EX  REL.  R,  W.  AND  O.  R  R.  Co.  ».  DIXON 178 

UNLAWFUL  IMPRISONMENT  —  Action  for,  against  iudge— when  not 
maintainable,  although  sentence  is  unauthorized.]  1.  The  plaintiff  was  con- 
victed of  a  crime  punishable  by  fine  or  imprisonment.  The  United  States 
District  Court,  over  which  the  defendant  presided  as  judge,  imposed  both. 
The  plaintiff  paid  the  fine  and  applied  to  be  released,  because  he  had  suf- 
fered one  of  the  alternative  punishments  provided  for  the  offense.  The 
application  was  denied  and  the  court  directed  the  sentence  pronounced  to  be 
vacated,  and  then  sentenced  the  plaintiff  to  one  year's  imprisonment  -nider 
his  conviction  (authority  to  so  change  the  punishment  having  been  preri- 
ouflly  held  by  the  Supreme  Court  of  the  United  States  to  exist).  On  return 
to  a  writ  of  habeas  corpus  and  a  writ  of  certiorari  issued  by  the  United  States 
Supreme  Court,  the  plaintiff  was  discharged  from  custody,  the  court  holding 


716  INDEX. 

UNLAWFUL  IMPRISONMENT—  Continued. 
that  he  could  not  lawfully  be  sentenced  to  imprisonment  after  what  had 
transpired  in  the  case.  The  plaintiff  thereupon  brought  this  action  for 
unlawful  imprisonment.  Held,  that  it  could  not  be  maintained. 

LANGE  v.  BENEDICT 38t 

~. Doubtful  question — judge  required  to  deride.]    Where,  in  the  course 

of  a  judicial  proceeding,  a  judge  is  required  to  pass  upon  a  question,  the  law 
as  to  which  is  in  such  a  condition  as  to  afford  ostensible  support  to  each  side 
of  the  proposition  presented,  so  that  different  minds  might  well,  and  natu- 
rally would,  be  lead  to  different  conclusions  as  to  the  proper  course  to  be 
pursued  in  disposing  of  the  case,  a  judge  cannot  be  held  personally  liable 
for  a  decision  made  by  him  in  good  faith,  and  without  malice,  even  though 
an  appellate  court  should  subsequently  reverse  such  decision,  and  hold  that 
the  judge  had  no  power  to  render  or  enforce  the  same.  Id. 

3.  Following  prior  decision  of  appellate  court.]    Especially  is  the  judge 

exempt  from  personal  liability,  when  his  action  is  founded  upon  a  decision 
of  an  appellate  tribunal  to  which  he  is  bound  to  conform,  affirming  the 
existence  of  the  authority  exercised  by  him  in  passing  the  sentence  in 
question.  Id. 

UNSOUND  MIND  —  Inquisition  —  Prirna  facie  evidence  of. 

See  HICKS  v.  MARSHALL 327 

VENDOR  AND  PURCHASER  —  Fraudulent  representations  — made  to 
the  agent  of  one  firm  —  when  acted  upon  by  another  firm  by  wltom  such  agent  u 
afterwards  employed —  liability  for. 

See  HILL  «.  CABLET 636 

Negotiable  paper  —  invalid  in  hands  of  payee  —  bona  fide  purchaser  of — 

recovery  by,  restricted  tc  jmount  paid. 

See  TODD  v.  SHELBOUHNE 510 

Promissory  note  —  duty  of  purchaser  —  bona  fide — notice  sufficient  to 

require  inquiry. 

See  MABIE  v.  JOHNSON 300 

Grant  of  lot  on  street  — fee  to  center,  passes,  when. 

See  MOTT  v.  MOTT 474 

Warranty —  Inspection  of  goods  before  delivery  —  effect  of — Penalty. 

See  AIcPARLiN  v.  BOYNTON 449 

Qf  promissory  note  —  in  violation  of  statute  of  Pennsylvania  — bona  fide 

purchaser,  when  protected  —  Laws  of  another  State  —  knowledge  of  existence  of — 
a  question  of  fact,  not  of  law. 

See  PALMERS.  MINAB... 343 

— —  Mortgage  —  covenant  in  deed,  assuming — enures  to  benefit  of  mortgagee 
—  distinction  between  such  covenant  when  made  by  grantee  and  mortgagee. 

See  CAMPBELL  v.  SMITH 6 

Title— when  it  passes  —  Delivery  —  Acts  to  designate  articles  — to  ascer- 
tain their  value — distinction. 

See  BURROWS  v.  WHTTAKER.   260 

VJKLNUJS — Change  of — when  right  to  absolute  and  not  discretionary  —  act* 
done  virtute  oMcii — public  officer. 

See  PEOPLE  v.  KLNGBLEY 238 

VERDICT  —  For  excessive  damages — when  not  set  aside. 

See  PECK  v.  N.  Y.  CEN.  AND  HUD.  R  R.  R  Co 286 

Of  jury  —  there  must  be  rational  ground  for. 

See  McCAio  v.  ERIE  RAILWAY  Co 590 

VERIFICATION  —  Bui  of  particulars— mechanic's  Ken.]  Where,  at  the 
time  of  serving  a  notice  to  foreclose  a  mechanic's  lien,  a  bill  of  particulars 
was  served,  sworn  by  the  claimant  to  be  "in  all  respects  true.to  the  beet  of 
his  knowledge  and  belief."  Held,  that  the  verification  was  sufficient. 

OBEY  v.  VOBHIS 619 


INDEX.  717 

PAUL 

VESSEL  —  tiaieof — owned  by  tenants  in  common — power  of  Supreme  Court  to 
direct  —  Jurisdiction  of  admiralty  courts — Partition  of  personal  property. 

See  ANDREWS  v.  BETTS , 822 

VESTED  REMAINDER  —  Action  to  restrain  waste  — who  can  maintain.  J 
1.  The  plaintiff  was  the  owner  of  an  estate  in  certain  land  for  the  life  of  B.,  to 
commence  upon  the  termination  of  an  estate  of  the  defendant  therein  for  the 
term  of  her  natural  life.  Held,  that  he  had  a  vested  remainder  therein,  and 
could  maintain  an  action  to  restrain  the  defendant  from  the  commission  of 
waste.  WILLIAMS  v.  PEABODT 271 

2.  Residuary  legatee  —  when  he  may  compel  a  discovery  of  personalty  held 

by  life  beneficiary.]    Defendant  was  entitled,  under  the  will  of  her  deceased 
husband,  to  use  certain  personal  property,  in  her  due  discretion,  for  any  pur- 
pose and  in  any  reasonable  manner,  and  in  such  use  to  consume  and  exhaust 
the  same,  if  necessary  for  her  own  care  and  support,  and  the  plaintiff  was 
entitled  to  receive  whatever  might  remain  after  her  death.    Held,  that  he 
was  entitled  to  maintain  an  action  to  compel  the  defendant  to  render  an 
account  as  to  the  ite'fns  of  personal  property  received  by  her,  no  inventory 
thereof  having  ever  been  made.    Id. 

3.  Remainder.  ]   A  testator  bequeathed  certain  money  to  his  two  sisters, 

and  upon  the  death  of  the  survivor  directed  the  same  to  be  "  distributed  to  or 
among  such  of  the  children  of  my  deceased  brother  William,  or  their  (said  child- 
ren's) representatives,  as  the  survivor  of  my  said  sisters  shall,  by  will,  or  writ- 
ing in  the  nature  thereof,  direct,  and  in  default  of  such  writing,  then  that 
such  money  be  distributed  among  such  childr-en  or  their  representatives  per 
stirpes  and  not  per  capita,  equally,  share  and  share  alike,"    Held,  that  the 
fund  did  not  vest  hi  the  ultimate  legatees  in  remainder  until  the  decease  of 
the  testator's  surviving  sister,  and  that  neither  the  husbands  nor  the  widows 
of  children  who  died  prior  to  that  time,  were  entitled  to  participate  in  the 
distribution  thereof.    BROWN  v.  NICHOLSON 464 

VTRTUTE  OFFICII  —  Acts  done  —  Venue  —  change  of— when  right  to, 
absolute  and  not  discretionary.]  An  action  against  a  public  officer  for  acts 
done  virtute  offlcii  must  be  brought,  so  far  as  he  is  concerned,  in  the  county 
where  the  cause  of  action,  or  some  part  thereof,  arose.  It  is  an  absolute 
right,  and  not  a  matter  of  judicial  discretion,  and  he  cannot  be  deprived  of 
this  statutory  right  by  joining  other  parties  as  defendants. 

The  venue  must  first  be  correctly  laid,  and  then  the  usual  incidents 
of  an  action  may  occur ;  and  a  motion  may  be  made,  after  issue  joined, 
to  change  the  place  of  trial,  on  the  ground  of  the  impossibility  of  obtaining 
an  impartial  trial  in  the  county  designated ;  but  this  ground  is  no  answer  to 
a  motion  before  issue  joined  to  change  the  venue,  where  the  proper  county 
has  not  been  designated  in  the  complaint  PEOPLE  v.  KINOSLET 288 

VOLUNTARY  PAYMENT  —  Of  assessment  —  under  protest  —  right  to 
recover  amount  paid. 

See  PEYSER  v.  MAYOR 418 

"WAIVER  —  Failure  to  serve  in  an  action  to  foreclose  a  mechanic's  lien,  the 
bill  of  particulars  required  by  section  10  of  chapter  402  of  1854,  is  waived  by 
the  service  of  an  answer,  ana  cannot  be  taken  advantage  of  on  the  trial. 

NORCOTT  v.  FIRST  BAPTIST  CHURCH  OF  ROME 689 

WALL  —  Party  —  Covenant  by  grantee  to  assume  agreements  to  —  similar  in 
principle  to  assumption  of  mortgage. 

See  STEWART  v.  ALDRICH 84J 

WARRANTY  —  Inspection  of  goods  before  delivery  —  effect  of.]  1.  Where 
parties  stipulate  that  articles  to  be  manufactured  shall  be  of  a  particular 
kind  and  quality,  and  at  the  same  time  stipulate  that  they  shall  be  tested  by 
some  person  selected  by  the  purchaser  before  delivery,  to  ascertain  whether 
they  are  of  the  specified  kind  and  quality,  and  such  test  is  in  fact  made  by 
him,  and  the  goods  are  thereupon  delivered  and  accepted,  there  is,  in  the 
absence  of  fraud  and  collusion  between  the  manufacturer  and  the  person 
selected  to  test  the  goods,  no  remedy  by  action  upon  the  contract,  even 


718  INDEX. 

WARRANTY  —  Continued.  PAHk 

though  the  goods,  or  some  portion  of  them,  are  subsequently  ascertained 
not  to  be  equal  to  the  warranty. 

The  plaintiff  agreed,  in  writing,  to  manufacture  for  the  defendant  certain 
saws  of  the  "  best  cut  steel,  hardened  and  tempered,  carefully  ground  to 
three  gauges  thin  on  back  and  filed,  set  and  warranted  best  in  every  particu- 
lar. The  saws  to  be  tested  by  your  man  employed  for  the  purpose  of  filing 
and  finishing  same."  Held,  that  the  defendant  having  appointed  a  man  to 
test  the  saws  in  pursuance  of  the  contract  was  bound  by  his  decision,  and 
could  not  thereafter  set  up  a  breach  of  the  warranty  as  a  defense  to  an  action 
for  the  purchase-price.  MCPARLIN  v.  BOYNTON 441 

2.  Penalty.]    The  contract  further  provided,  that  "  all  saws  not  taken 

by  you  in  sixty  days  from  completion  of  their  manufacture  we  shall  charge 
thereon  interest  at  the  rate  of  ten  (10)  per  cent  per  annum."  Held,  that  this 
meant  that  if,  for  any  reason,  defendant  was  not  in  readiness  to  receive  the 
saws  within  sixty  days,  and  their  delivery  was  thereby  postponed  beyond 
that  period,  he  should  pay  ten  per  cent  for  the  period  that  might  elapse 
between  the  expiration  of  sixty  days  from  manufacture  and  the  time  of 
delivery.  Id. 

WASTE  —  Action  to  restrain  —  who  can  maintain  —  Vested  remainderman. 

See  WELLIAMS  v.  PEABODY 271 

WATER  — Grant  of  use  of —  amount  not  defined  —  easement  limited  to  amount 
first  taken. 

See  ONTHANK  t>.  LAKE  SHORE  AND  M.  S.  R  R  Co 181 

WTLL  —  Providing  for  EQUAL  division  among  next  of  kin,  as  in  case  of  intestacy 
—  construction  of —  as  to  rights  of  widow  and  child.]  1.  A  testator  empowered 
his  executors  to  pay  to  his  sons,  after  their  arrival  at  the  age  of  twenty- 
one  years,  the  whole  or  part  of  their  portion  of  his  estate  as  they  should  deem 
prudent.  The  will  also  provided,  "  aud  in  case  the  whole  of  said  principal 
shall  not  be  paid  to  them  or  either  of  them  during  their  lives,  then  the  said 
principal,  or  such  part  or  portion  thereof  as  may  remain  unpaid,  to  be 
equally  divided  among,  and  paid  to  the  persons  entitled  thereto,  as  their  or 
either  of  their  next  of  kin,  according  to  the  laws  of  the  State  of  New  York, 
and  as  if  the  same  were  personal  property,  and  they  or  either  of  them  had 
died  intestate."  A  son  of  the  testator  tlied  before  he  had  received  his  share, 
there  being  some  $67,000  thereof  in  the  hands  of  the  executor  at  the  date 
of  bis  death,  leaving  a  widow  and  one  child,  an  infant. 

Held,  that  the  words  "  equally  divided  "  among  the  persons  entitled  thereto, 
were  restricted  by  the  last  part  of  the  clause  "  and  as  if  the  same  were 
personal  property,  and  they  or  either  of  them  had  died  intestate."  The  direc- 
tion was  to  distribute  the  property  equally  in  the  manner  provided  by  law, 
as  in  case  of  intestacy;  but  as  the  law  does  not  distribute  equally  between 
a  widow  and  child,  no  other  mode  of  distribution  but  the  one  established 
by  statute  as  to  personal  property  in  case  of  intestacy  was  furnished,  and  it 
should  be  followed,  and  the  widow  take  one-third  and  the  child  two-thirds 
MUKDOCK  «.  WARD I 

2.  Portions  of,  revoked  by  codicil  fraudulently  procured,  and  destroyed  — 

Supreme  Court  has  power  to  establish  and  restore  the  portion  destroyed  —  Surro- 
gate's Court,  no  such  power.]  A  complaint  alleged  the  fraudulent  destruction, 
during  the  lifetime  of  the  testator  of  certain  clauses  in  his  will,  and  prayed, 
among  other  things,  that  such  clauses  be  restored  and  established  as  part  of 
said  will,  setting  forth  such  clauses  and  the  beneficial  interest  thereunder  of 
the  plaintiff,  who  was  neither  heir  at  law  or  next  of  kin  to  the  testator. 

Held,  not  demurrable  on  the  ground  that  it  did  not  state  facts  sufficient  to 
constitute  a  cause  of  action. 

That  the  Surrogate's  Court  had  no  power  to  grant  the  relief;  it  could  only 

Sant  letters  of  probate  on  a  perfected  will,  but  had  no  jurisdiction  to  estab- 
h  a  lost  or  destroyed  will. 

That,  although  the  statute  (title  1,  chap.  6,  3  R  S.)  refers  to  a  "lost  or 
destroyed  will,"  it  should  have  a  liberal  construction  in  furtherance  of  jus- 
tice, and  for  the  prevention  of  fraud;  and  the  fraudulent  destruction  of  a 
single  item  or  clause,  or  distinct  portion  or  provision  of  a  will,  must  b« 


INDEX.  719 

VTHiL  —  Continued.  TM, 

considered  as  the  destruction  of  a  will  by  design,  under  section  68,  or  fraud- 
ulent under  section  67,  if  such  destruction  affects  the  disposition  of  the  prop- 
erty of  the  testator  in  any  essential  particular. 

That  the  court,  under  the  provisions  of  the  statute  aforesaid,  have  ample 
power  upon  due  proof  of  the  allegations  of  the  plaintiff's  complaint,  to 
restore  the  destroyed  or  suppressed  portions  of  the  will,  and  establish  the 
same  as  it  stood  before  the  making  of  the  codicil  alleged  to  have  been 
fraudulently  procured ;  and  the  probate  of  such  codicil  allowed  or  made  by 
the  surrogate  did  not  preclude  such  investigation  and  decision,  or  bind  o*r 
affect  the  plaintiff  upon  such  question  in  the  prosecution  of  her  action. 

HOOK  D.  PRATT 103 

Vested  remainder  —  Action    to   restrain  waste  —  who   can  maintain  — 

residuary  legatee — wlien  he  may  compel  a  discovery  of  personalty  held  by  life 
beneficiary. 

See  WILLIAMS  v.  PEABODY 271 

Remainder  created  by,  when  vested. 

See  BROWN  t>.  NICHOLSON 464 

Power  of  sale  —  title  to  real  estate  subject  to,  in  heirs  until  sale. 

See  PEOPLE  EX  REL.  SHAW  t>.  SCOTT 56<J 

WITNESS  —  Next  of  Tdn  incompetent,  though  called  to  testify  against  hit 
vnterest —  Code,  $  399.1  1.  The  testimony  of  one  who  is  next  of  kin  and  inter- 
ested in  the  event  of  an  action,  although  not  a  party  thereto,  as  to  conver- 
sations with  defendant's  intestate,  whether  it  be  favorable  to  or  against  hia 
interest,  is  inadmissible,  under  section  399  of  the  Code. 

LE  CLARE  P.  STEWART , 127 

2.  Credit  due  to  uncontrudicted  statements  of — Ju>w  affected  by  interest 

in  suit.]     The  rule,  that  where   a  disinterested  witness   testifies  to   the 
existence  of  a   fact  within  his  own   knowledge,  and   nothing   appears  to 
discredit  his  statement,  which  is  not  inherently  improbable,  neither  the  court 
nor  the  jury  can  arbitrarily  reject  it,  does  not  apply  to  the  evidence  of  a 
person  whose  interest  it  is  to  establish  the  truth  of  what  he  swears  to,  as 
where  he  is  to  receive  the  fruits  of  the  litigation,  either  partially  or  wholly, 

in  case  it  may  prove  successful.     SHERIDAN  v.  MAYOR '. .  424 

3.  Uncontradicted  statements  of  party — not  conclusive.]    The  uncon- 

tradicted  evidence  of  a  party,  or  other  interested  witness,  is  not  necessarily 
conclusive  upon  either  the  court  or  the  jury.    Id. 

Should  not  be  asked  to  state  t?ie  amount  of  damages. 

See  FLEMING  v.  D.  AND  H.  CANAL  Co 858 

When  a  party  to  an  action  is  required  to  attend  before  a  judge  to  be 

txamined  as  a  witness  under  §  391  of  the  Code,  has  appeared  by  attorney,  notice 
ff  such  examination  must  be  served  on  the  attorney  as  well  as  the  party. 

See  PLUMMER  v.  BELDEN 465 

WRIT  OF  ERROR —  What  errors  will  be  considered  on  —  charge  of  judge.] 
Upon  the  trial  of  the  plaintiff  in  error  for  rape,  the  court  refused  to 
charge  that  he  must  have  "accomplished  his  purpose  in  spite  of  the  utmost 
reluctance  and  resistance  on  her  part."  The  prisoner  was  convicted  of  an 
wsault  with  intent  to  commit  rape.  Upon  a  writ  of  error  to  review  this 
conviction,  held,  that  as  the  refusal  to  charge,  even  if  it  were  error,  did  not 
tn  any  way  affect  the  crime  of  which  he  was  convicted,  but  only  that  of  which 
ie  was  acquitted,  it  furnished  no  ground  to  reverse  the  judgment. 

MYER  v.  PEOPLE 528 

To  Court  of  General  Sessions — tested  and  signed  by  County  Judge  —  a 

8u  HINM  AN  9.  PEOPLE 641 


A    001  167827     3 


